How long must a lawyer keep closed client files, how should they be stored, and how may they be destroyed?

Plain-English summary

A lawyer whose firm was running out of in-house storage asked how closed legal files must be retained, stored, and disposed of, including whether files must remain in hard copy or may be transcribed to another medium, what portions may be returned to the client, and how files should be destroyed after the retention period.

The Disciplinary Commission explained that a lawyer does not have a general duty to preserve all files permanently, but clients reasonably expect that valuable and useful information not otherwise readily available will not be prematurely and carelessly destroyed (citing an ABA committee opinion of March 14, 1977). With no specific Alabama rule fixing a retention period, the Commission applied the guidelines from its earlier Formal Opinion 84-91: the file should be examined and its contents sorted into four categories, (1) documents that are clearly the client's property and may have intrinsic value (wills, deeds, etc.), (2) documents delivered by the client that the client would expect returned, (3) documents that may have future value to the client, and (4) documents falling in none of those categories. Category 1 documents should be retained indefinitely or, preferably, recorded or deposited with a court; categories 2 and 3 should be kept a reasonable time, after which reasonable attempts should be made to contact the client and deliver them; category 4 documents may be destroyed.

The opinion stated there is no fixed "reasonable" time; because the file is the client's property, it could theoretically be returned immediately when the matter concludes, and retention length is largely a matter of firm policy. In setting that policy, a firm could reasonably consider that the statute of limitations under the Alabama Legal Services Liability Act is two years and that the period for filing formal Bar disciplinary charges is six years. Before disposal, the client should be informed and given the chance to take the file or consent to destruction; if the client cannot be located by certified mail or newspaper notice, the file should be kept a reasonable time (the Commission's view is that six years is reasonable absent unusual circumstances) and then destroyed except for category 1 documents, with the file first screened for permanent documents and an index of destroyed files maintained. As for storage, files may be kept in any facility, including secure off-site locations, and in any medium (microfilm or electronic scanning) that preserves the integrity and confidentiality of the documents.

Currency note

This opinion was issued in 1993, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules, statutes, and limitations periods before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer keep client files forever?

A: No. The opinion concluded a lawyer has no general duty to preserve all files permanently, though clients reasonably expect that valuable information will not be prematurely or carelessly destroyed.

Q: How should a closed file be handled before destruction?

A: Per the opinion, sort the contents into four categories, keep client-property documents (category 1) indefinitely, notify the client before disposal, screen for permanent documents, and keep an index of destroyed files.

Q: Can files be stored electronically or on microfilm instead of paper?

A: Per the opinion, yes; files may be stored in any medium (including microfilm or electronic scanning) that preserves the integrity and confidentiality of the documents, at the office or a secure off-site location.

Q: What retention period did the Commission consider reasonable?

A: The opinion stated there is no fixed period, but where a client cannot be located, its view was that six years is reasonable absent unusual circumstances, noting the two-year malpractice limitations period and the six-year Bar disciplinary charging period as considerations.

Background and rules framework

The opinion addresses a lawyer's handling of closed files as client property and the duty to safeguard client information, drawing on Rule 1.15 (Model Rule 1.15, safekeeping property) and Rule 1.16 (Model Rule 1.16, surrender of papers on termination) principles, the Commission's Formal Opinion 84-91 file-retention guidelines, and an ABA committee opinion on file retention dated March 14, 1977. It references the Alabama Legal Services Liability Act limitations period and the six-year Bar disciplinary charging period.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 / Ala. R. Prof. C. 1.15 (safekeeping client property)
• Model Rule 1.16 / Ala. R. Prof. C. 1.16 (surrender of papers and property on termination)

Statutes:

• Alabama Legal Services Liability Act (two-year limitations period, referenced)

Other opinions cited:

• Ala. Formal Op. 84-91 (file-retention guidelines; four-category framework)
• ABA Committee on Ethics and Professional Responsibility opinion on file retention (Mar. 14, 1977)

See also

• AL Ethics Op. 1986-02: file copies subject to attorney's lien
• AL Ethics Op. 1992-05: file belongs to the client absent a valid lien

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1993-10/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-93-10.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION

RO-93-10

Retention and destruction of client files

QUESTION:

"I am seeking an ethics opinion from the Alabama State Bar Association regarding the retention, storage, and the disposing of closed legal files.

My law firm is quickly depleting its in-house storage capacity. I have been asked to review methods of data storage and retrieval such as microfilm, off-site storage, and electronic scanning. Before exploring these options, I am requesting your assistance in formulating a reasonable plan that complies with all applicable rules and statutes.

I am aware of the requirement to retain a client's file for six years after the case has reached its conclusion. How may the file be stored? Must the files remain in 'hard copy' form or may it be transcribed to another medium? Please identify all statutes, rules of conduct relating to this process, and any other ethics opinions.

Once a file is closed, may certain portions of the file be returned to the client? What is an attorney's obligation regarding the portion of the file returned to the client. After the six years interval, what is the appropriate method of disposing of a client's file?"

DISCUSSION:

A lawyer does not have a general duty to preserve all his files permanently. However, clients and former clients reasonably expect from their lawyer that valuable and useful information in the client's file, and not otherwise readily available to the client, will not be prematurely and carelessly destroyed. ABA Committee on Ethics and Professional Responsibility, in Formal Opinion 13384 (March 14, 1977).

While there are no specific rules in the Alabama Rules of Professional Conduct regarding the length of time a lawyer is required to retain a closed file or the disposition of that file after a lapse of time, the Disciplinary Commission established the following guidelines in Formal Opinion 84-91.

The answers to the above questions depend on the specific nature of the instruments contained in the files and the particular circumstances in a given factual situation. For that reason, the file should be examined and the contents segregated in the following categories: (1) Documents that are clearly the property of the client and may be of some intrinsic value, whether delivered to the lawyer by the client or prepared by the lawyer for the client, such as wills, deeds, etc.; (2) documents which have been delivered to the lawyer by the client and which the client would normally expect to be returned to him; (3) documents from any source which may be of some future value to the client because of some future development that may or may not materialize; and, (4) documents which fall in neither of the above categories.

Documents which fall into category 1 should be retained for an indefinite period of time or preferably should be recorded or deposited with a court. Documents falling into categories 2 and 3 should be retained for a reasonable period of time at the end of which reasonable attempts should be made to contact the client and deliver the documents to him or her. Documents which fall into category 4 could be appropriately destroyed.

With regard to time, there is no specific period that constitutes "reasonable" time. It depends on the nature of the documents in the file and the attendant circumstances. Since the file is the property of the client it theoretically may be immediately returned to the client when the legal matter for which the client is being represented is concluded. For a variety of reasons, lawyers and law firms usually maintain client files for some period of time ranging from a few years to permanent retention. The length of time is more a matter of the lawyer's or the firm's policy rather than any externally generated requirement. In establishing this policy, it would not be unreasonable for the lawyer or law firm to consider that the statute of limitations under the Alabama Legal Services Liability Act is two years and six years for the filing of formal charges in Bar discipline matters. (In some cases the time period may be extended.)

At the expiration of the period of time established by the lawyer or law firm for file retention, the following minimum procedures should be followed for file disposition. First, the client should be informed of the disposal plans and given the opportunity of being provided the file or consenting to its destruction. If the client cannot be located by certified mail or newspaper notice, the file should be retained for a reasonable time (absent unusual circumstances, it is the Commission's view that six years is reasonable) and then destroyed with the exception of those documents classified as category 1 above. Prior to destroying any client file, the file should be screened to insure that permanent type (category 1) documents and records are not destroyed. Third, an index should be maintained of files destroyed.

With regard to storage, files may be stored in any facility in which their confidential integrity is maintained. This may be in the lawyer's or law firm's office or at some secure off-site location. Any medium that preserves the integrity of the documents in the file, whether microfilm or by electronic scanning, is appropriate.

RWN/vf

6/10/93