Legal Ethics: Maintaining Your Files

As California attorneys, young and old, we have administrative obligations that I would say have increased in number and specificity at a rapid rate in recent years. It is crucial to learn and comply with all of these requirements so you don’t risk losing your license over recordkeeping violations. The requirements include:

• Most of us must complete 25 hours of Minimum Continuing Legal Education (MCLE) every three years. But it can’t be just any 25 hours of MCLE. Every three years we must include the following:
  • 12 hours that are participatory, i.e. not self-study
  • 2 hours for elimination of bias, one hour of which must focus on implicit bias and the promotion of bias-reducing strategies to address how unintended biases regarding race, ethnicity, gender identity, sexual orientation, socioeconomic status, or other characteristics undermine confidence in the legal system; 
  • two hours of competence, one hour of which must focus on prevention and detection;
  • one hour of technology;
  • one hour of civility.

• Also, don’t forget the older requirement of four-credit hours regarding legal ethics. The Bar provides a blank MCLE study log here. 

• All attorneys are required to certify the sanctity of their trust account(s) through an often hard to understand questionnaire that must be attested to under penalty of perjury that you have followed all the rules in the 150 page “Handbook on Client Trust Accounting for California Attorneys.”

• You probably have already done this, but pursuant to the California Rules of Court, rule 9.9.5, you be re-fingerprinted by a live scan vendor;

• You must maintain your current address in “My State Bar Profile” pursuant to California Business & Professions Code Section 6002.1. Any change must be made within 30 days. This is posted on the State Bar website. 

• And, oh yes, you have to pay your annual dues after wading through a plethora of add-ons to the amount you may want to pay such as legal specialist dues. 

In addition to all these requirements, after working on it for six years, the State Bar of California Standing Committee on Professional Responsibility and Conduct (COPRAC) seems ready to finalize an opinion regarding the “ethical obligations of lawyers with respect to retention and destruction of client files, materials, and property in closed civil and criminal matters.” The draft opinion states, in part, based on the statutory authority of Cal. Penal Code section 1054.9(g) that a criminal practitioner must keep the files, materials, and property “forever,” although there are some variations to the “forever” part in the draft opinion.

The reason for this requirement in criminal cases is the importance of having the documents for post-conviction work in cases, especially those with life sentences and the death penalty. 

There are two exceptions to the file retention rule, and these give rise to a couple of practice tips for young attorneys. You can contract with your client regarding the retention of their files. So, both civil and criminal practitioners should put a provision in your retainer agreement that you should explain to your client at the time of executing the agreement. Of course, this is not practical for criminal appointed cases.

The second exception is to digitalize everything in your cases, meaning keep everything on hard drives that you or future counsel can access at any time in the future. 

When my house burned down in the 2003 Cedar fires, all of my client files in a storage shed on the property were lost. From then on, I realized that digitization allows the survival of everything, especially information stored in the cloud. That became the policy of our office, and everything has been scanned and digitized since then. The added benefit is that once a case is completely closed you can dispose of the paper files. Of course, those hard files must be disposed properly in accordance with the ethical obligation of maintaining client confidences (including hard drives from your out-of-service computers). 

Shredding of files and hard drives should be done pursuant to the National Association of Information Destruction (NAID) standards. This is a non-profit trade association responsible for setting standards and best practices for the information destruction industry. 

As shown, keeping your license is no easy task. Learn and stay ahead of all the requirements so you don’t run into any issues.