Block on Trump's Asylum Ban Upheld by Supreme Court
Fall is here, and it's time to start preparing for winter. (Or, if you live in the San Francisco Bay Area, fall is here, it's always been here, and it's time to start preparing for more fall.) As you look around the office, what do you see? Client files. Boxes of them, piled up in a closet somewhere, some from clients that you haven't seen for years. What do you do with these (hopefully not moldy) old boxes? Can you scan the file? Can you destroy the file? Do you have to contact the client first?
Every state is different, of course, and every state that has adopted the ABA Model Rules is in the same pickle; the ABA Rules don't say anything about how long you have to keep the file, only that you have to keep it "to avoid foreseeable prejudice" and provide it to the client on demand.
Below, we offer two examples of state rules; of course, your state's mileage may vary.
How Long Should You Keep Client Files?
The State Bar of California is pretty clear when it comes to criminal client files: State Bar Formal Opinion No. 2001-157 says that, because of the possibility of future criminal matters presented by Three Strikes, a criminal client's file should be kept for the life of the client and not destroyed without the client's express consent. (And even then, maybe not.)
Civil client files are different, however. The same opinion cautions that attorneys have statutory obligations to preserve original copies of probate and property instruments. Outside of that, though, California gets a little more lenient: An attorney must "use all reasonable means" to notify the client of the file, then give the client a reasonable time to respond. If the client doesn't respond and the attorney doesn't reasonably believe the file will be necessary for future claims or defenses, then the attorney can destroy the file, or any parts of the file that are unnecessary. (The L.A. County Bar Association recommends a minimum of five years.)
What About Digitizing?
If you feel leery of trashing a client file -- because who knows when something could "reasonably" come up in the future -- you can always scan it. Illinois Supreme Court Rule 769 requires its attorneys to keep records identifying clients' names and addresses (presumably forever), along with seven years' worth of financial records of the attorney's practice. Thankfully, Illinois amended the rule in 2003 to allow an attorney to keep "computer-generated images" of those documents.
The wrinkle is that the format the data are in has to allow for safekeeping for at least seven years. This means CDs and DVDs are OK, but hard drives and "other magnetic media" are not. Notably, the Illinois State Bar has said that documents without "intrinsic value" can be destroyed after five years if the client doesn't want them and they're no longer necessary.
I Think I'll Do Both
A combination of digitizing and giving away is probably the best course of action. Disk space is dirt-cheap, so there's no harm in scanning a client file, then offering it to the client when the representation is over. If the client doesn't want it, then file it away for five years or so. Then, remind the client of her right to the file and give her an opportunity to claim it. Don't forget that some documents need to be preserved in their original paper form. Generally speaking, once it's digitized, everything else can go.