How long must an Alaska criminal-defense lawyer retain a former client's file, and may the lawyer use electronic storage?

View original ethics opinion (PDF)

Plain-English summary

The opinion distinguishes criminal files from ordinary closed civil files because criminal matters may have future significance long after judgment, sentencing, and direct appeals. Post-conviction proceedings may require counsel and the court to examine the original lawyer's notes, discovery, investigation, and preparation. New evidence, technological developments, changes in law, and later sentencing consequences can make information in the file useful many years after the representation ends.

The Alaska Rules of Professional Conduct do not establish a universal minimum retention period and do not require permanent preservation of every client file. For criminal matters, however, the opinion concludes that lawyers and criminal-defense agencies should adopt retention policies reasonably related to the likelihood of future relevance. The retention period must be commensurate with the file's potential future need, which in some matters could be indefinite and in many matters may be a substantial number of years.

The appropriate period is a matter of professional judgment under the opinion. Relevant considerations include the offense's severity, the possible consequences of the conviction, the matter's complexity, the likelihood of post-conviction proceedings, whether the file contains information unavailable elsewhere, the cost and method of long-term storage, security, and future retrievability.

The opinion permits electronic retention if reasonable precautions preserve the complete file, keep it secure and confidential, and allow later access. It also recommends telling the client about the retention and destruction plan, offering the file when the matter closes, and giving notice and a reasonable opportunity to request the file before destruction when it will not be kept indefinitely. Retiring lawyers must take steps to prevent criminal client files from being lost or destroyed after retirement.

In practice

Under this opinion, there is no single Alaska retention period for every closed criminal file. Lawyers and legal agencies handling criminal defense must use the opinion's factors to select an appropriate period based on likely future need, and some files may require indefinite retention. The opinion permits electronic copies when the complete file is preserved securely and remains retrievable.

The opinion recommends communicating the retention plan to the client, offering the file at closing, and giving notice before destruction if the file will not be kept indefinitely. It also notes that certain criminal materials cannot be transferred to the client, citing AS 12.61.120(a) and Alaska Criminal Rule 16(b)(9).

Common questions

Q: Does Alaska Ethics Opinion 2023-1 set a fixed number of years for criminal file retention?

A: No. The opinion states that the rules prescribe no minimum period covering all cases. The period must be commensurate with the file's potential future need, which may be indefinite in some matters and a substantial period in many others.

Q: What factors determine how long a criminal file should be kept?

A: The opinion identifies the offense's severity, consequences of the conviction, complexity, likelihood of post-conviction proceedings, availability of the information elsewhere, storage cost and method, security, and future retrievability.

Q: May a lawyer keep only an electronic copy of a criminal file?

A: The opinion concludes electronic copies are sufficient if reasonable precautions preserve the complete file, protect confidentiality and security, and ensure the information can be accessed when needed.

Q: Must the client receive notice before a criminal file is destroyed?

A: The opinion recommends notifying the client of the retention and destruction plan, offering the file at closing, and providing notice and a reasonable opportunity to request the file before destruction when the lawyer will not keep it indefinitely.

Q: Can every part of a criminal defense file be delivered to the client?

A: No. The opinion notes that AS 12.61.120(a) and Alaska Criminal Rule 16(b)(9) restrict delivery of certain personal information and materials to a defendant.

Background and rules framework

The opinion identifies ARPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.6 (confidentiality), 1.15 (safekeeping client property), and 1.16(d) (protecting the client's interests and surrendering papers and property when representation ends). It does not treat any one rule as establishing a numerical retention period. Instead, those duties collectively require preservation practices responsive to the file's likely future value to the former client.

The opinion also explains that obligations may arise from contracts, malpractice-insurance requirements, agency policies, statutes, and court rules. Its analysis focuses on the professional-conduct duties and the special likelihood that a criminal file will be needed for post-conviction review or later sentencing consequences.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.1 and ARPC 1.1 (competence)
• Model Rule 1.3 and ARPC 1.3 (diligence)
• Model Rule 1.4 and ARPC 1.4 (client communication)
• Model Rule 1.6 and ARPC 1.6 (confidentiality)
• Model Rule 1.15 and ARPC 1.15 (safekeeping client property)
• Model Rule 1.16(d) and ARPC 1.16(d) (protecting interests and surrendering papers)

Statutes and court rules:

• AS 12.55.125 (presumptive felony sentencing)
• AS 11.41.220(a)(5) (prior misdemeanor assaults and felony charging)
• AS 12.61.120(a) (restricted disclosure of certain personal information)
• Alaska Criminal Rule 16(b)(9) (restrictions on availability of certain material)
• Alaska Criminal Rule 35.1 (post-conviction relief)

Cases:

• Belluomini v. State, 2020 WL 2551859 (Alaska App. May 20, 2020), certificate-of-no-merit requirements
• Griffin v. State, 18 P.3d 71 (Alaska App. 2001), explanation supporting a certificate of no merit
• Tazruk v. State, 67 P.3d 687 (Alaska App. 2003), record needed to assess post-conviction representation
• Beshaw v. State, 2012 WL 1368146 (Alaska App. Apr. 18, 2012), record of counsel's post-conviction review

Other opinions cited:

• California Formal Ethics Opinion 2001-157: retention of criminal client files
• Alabama Formal Ethics Opinion 2010-02: client-file retention, storage, and destruction
• ABA Informal Opinion 1384 (1977): no universal permanent-retention duty
• Alaska Ethics Opinion 2008-1: electronic client information
• Alaska Ethics Opinions 2003-3 and 2011-1: materials returned to former clients

See also

• CA Ethics Op. 2001-157: retention of former client files
• AL Ethics Op. 2010-02: client file retention and storage
• MS Ethics Op. 236: public defender duty to provide a client file

Source

• Landing page: Alaska Bar adopted ethics opinions
• Original PDF: Alaska Ethics Opinion 2023-1

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION 2023-1

                             ISSUE PRESENTED

  What ethical duties does a lawyer have regarding the retention of former

clients’ files in criminal matters?

                                 SHORT ANSWER

  Files relating to criminal matters may have future vitality even after

judgment, sentence, and statutory appeals have concluded. In criminal matters,

lawyers cannot always foresee the future utility of information contained in the

file. New technology, newly discovered evidence, and changes to the law can make

post-judgment relief appropriate, and a complete copy of the client file may be

critical to obtaining that relief.

  The Committee concludes that lawyers and legal agencies involved in

criminal defense should formulate and adopt client file closing and retention

policies that are reasonably related to the likelihood that the file will be relevant

in future years. Lawyers should retain a copy of client files in criminal matters

for an amount of time commensurate with the potential future need for the file,

which in some situations could be indefinitely, and in many situations may be

for a substantial period of years. The Alaska Rules of Professional Conduct,

however, do not create a hard and fast rule regarding criminal file retention

covering all possible scenarios.

                                   ANALYSIS

  Lawyers have a number of ethical and legal obligations related to client files

and property. The applicable Rules of Professional Conduct include:

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  • Rule 1.1: A lawyer shall provide competent representation.

  • Rule 1.3: A lawyer shall act with reasonable diligence and
              promptness.

  • Rule 1.4: A lawyer shall communicate with a client and comply
              promptly with all of a client’s reasonable requests for
              information.

  • Rule 1.6: A lawyer shall keep a client’s confidences.

  • Rule 1.15: A lawyer shall safeguard the property of the client.

  • Rule 1.16(d): A lawyer shall, upon termination of representation,
              take reasonable steps to protect a client’s interests
              including surrendering all papers and property to which
              the client is entitled.1

  The Rules of Professional Conduct do not prescribe a minimum period of

time for the retention of client files, nor is a lawyer required to permanently

preserve all files of current or former clients.2 In civil matters, the Committee is

advised that Alaska lawyers generally retain client files for seven to ten years—

  1 See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000) §46 (“(1) A

lawyer must take reasonable steps to safeguard documents in the lawyer’s
possession relating to the representation of a client or former client. (2) On
request, a lawyer must allow a client or former client to inspect and copy any
document possessed by the lawyer relating to the representation, unless
substantial grounds exist to refuse.”). The Committee notes that in addition to
obligations under the Rules of Professional Conduct, a lawyer may have file
retention obligations arising from contractual obligations, malpractice insurance
requirements, or agency policies and practices, among other sources.
2 See ABA Comm. on Ethics & Prof’l Responsibility, Informal Op. 1384

(1977) (applying former Code of Prof’l Responsibility) (“[a] lawyer does not have a
general duty to preserve all of [the lawyer’s] files permanently . . . . But clients
(and former clients) reasonably expect from their lawyers that valuable and useful
information in the lawyers’ files, and not otherwise readily available to the clients,
will not be prematurely and carelessly destroyed, to the client’s detriment. We
cannot say there is a specific time during which a lawyer must preserve all files
and beyond which [the lawyer] is free to destroy all files.”).

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essentially, until the chances for a reopening of the matter have dwindled to a

minimum.

  Criminal files are different in that they can be the subject of post-conviction

relief litigation many years after the matter has been closed. “Files relating to

criminal matters may well have future vitality even after judgment, sentence and

statutory appeals have concluded. In criminal matters, the attorney cannot

foresee the future utility of information contained in the file.”3 An application for

post-conviction relief, even if resulting in the filing of a certificate of no merit,

requires a thorough investigation by the attorney into the applicant’s claims.4

The court reviewing a post-conviction relief petition needs an adequate record to

determine whether the applicant was adequately advised and represented.5

  3  California Bar Formal Ethics Op. No. 2001-157 (2001), quoting Los

Angeles Co. Bar Ass’n Committee on Legal Ethics Formal Op. No. 420 (1983).
Based on these concerns, the California Bar concluded that “client files in
criminal matters should not be destroyed without the former client’s express
consent while the former client is alive.” Op. No. 2001-157 at 5.
4 Criminal Rule 35.1(d)(4) and (f)(2); see also Belluomini v. State, 2020 WL

2551859 (Alaska App. May 20, 2020) (“Under Rule 35.1(e)(3), a certificate of no
merit must include a full description of the claims the attorney considered, the
materials the attorney reviewed, the investigations the attorney conducted, and
the reasons why the attorney has concluded that all of the applicant's potential
claims have no arguable merit. With regard to this final requirement, the attorney
‘must provide the court with a full explanation of all the claims the attorney has
considered and why the attorney has concluded that these claims are frivolous.’”
(quoting Griffin v. State, 18 P.3d 71, 74 (Alaska App. 2001))).
5 Tazruk v. State, 67 P.3d 687, 690 (Alaska App. 2003) (“Even if a zealous

and competent attorney could not have done anything more to advance Tazruk’s
claims, without an actual record indicating that the attorney investigated the
claims, ‘sought to adduce support for them through discovery,’ or attempted to
‘reformulate them so that they might survive a motion to dismiss,’ we were unable
to perform our constitutional duty in ensuring that Tazruk received zealous and
competent representation.”); Beshaw v. State, 2012 WL 1368146, at *6 (Alaska
App. Apr. 18, 2012) (noting that without the record of the materials reviewed, the

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Relevant evidence may consist of lawyer notes, the presence or absence of

discovery materials provided by the prosecution, and evidence related to the

lawyer’s investigation and thoroughness in preparing the defense.

  Post-conviction relief litigation can also be based on evidence related to

issues of innocence and guilt. Technological advances and newly discovered

evidence or testimony may make the evidence in the client’s file material to post-

judgment relief years after conviction.6 The criminal client has the legitimate

expectation that counsel will safeguard that information. Alaska has many forms

of mandatory minimum and presumptive sentencing schemes, making client files

in criminal matters resulting in conviction extremely important to future

sentencing exposure, or even the level of charging for future criminal allegations.7

In addition, time limits for seeking post-conviction relief are long and difficult to

determine, which complicates setting a fixed period for file retention.8

court has no basis to meaningfully assess whether the attorney zealously
represented the applicant as required by Griffin, 18 P.3d at 75-77, and
Criminal Rule 35.1(e)(2)).
6 Tazruk, 67 P.3d at 689 n.2 (“[W]hen a defendant seeks post-conviction

relief based on newly discovered evidence, . . . . the defendant must show that
the evidence was not known at the time of the defendant’s trial or plea despite
the defense team’s diligent efforts, and that this new evidence (if presented)
probably would have led to the defendant’s acquittal.” (citing Lewis v. State, 901
P.2d 448, 450 (Alaska App. 1995) and Gonzales v. State, 691 P.2d 285, 286–87
(Alaska App. 1984)).
7 For example, sentences of imprisonment for felonies are premised upon

the presumptive sentencing structure set forth at AS 12.55.125. Similarly, in the
arena of crimes against the person, the Alaska Legislature has determined that a
history of prior misdemeanor assaults can turn what is otherwise future
misdemeanor conduct into a felony offense. See AS 11.41.220(a)(5).
8 The Committee is advised by public defense counsel that a direct appeal

to the Court of Appeals can take anywhere from two to six years to be resolved,
which can be followed by a petition for review to the Supreme Court, which can

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  Bar Ethics Committees in other jurisdictions have highlighted that criminal

case files “should be retained indefinitely and until their contents are

substantively and practically obsolete and their retention would serve no useful

purpose to the client, the lawyer, or the administration of justice.”9 Alaska’s

public criminal defense agencies maintain their felony client files for up to 35

years.10 The Alaska Department of Law keeps most felony criminal case files and

records either for 50 years past the case closing date or permanently,11 and the

take an additional six months to several years to resolve. The post-conviction
relief deadline is presumptively one year following the end of the direct appeal,
but this time limit is subject to legal justifications for tolling or extending the
deadline. Post-conviction relief appeals can take as long as direct appeals and
may be followed by habeas corpus litigation, or by an ineffective assistance of
counsel claim relating to the post-conviction relief or habeas proceeding.
9 Alabama Bar Ethics Op. 2010-2, “Retention, Storage, Ownership,
Production and Destruction of Client Files,” at 7; see also California Bar Formal
Ethics Op. No. 2001-157 (2001), supra note 3 (criminal files should be maintained
until the client’s death); Ohio Bd. of Prof’l Conduct, Ohio Ethics Guide Client File
Retention (2016) at 3 (“For example, files related to . . . criminal law . . . should
be retained until the files no longer serve a useful purpose to the current or former
client.”).
10 State of Alaska Records Retention and Disposition Schedule, Public

Defender Agency, at 2 (“If original paper records are scanned, they can be
disposed of once the electronic copies have been certified as being a ‘true and
correct’ copy of the original. Justification for ‘C+35’ year retention: Cases are often
re-opened years after a conviction is entered and the case file is closed. If a felony
conviction is appealed, a new appeal case file is opened, but original felony case
file must be available. Appeals often take up to 2 years, and sometimes 3-5 years.
After an appeal, per the AK Rules of Criminal Procedure, a defendant has up to a
year to apply for post-conviction relief. These can be lengthy proceedings,
sometimes taking 2 years or more. PDA also needs to retain felony/appeals files
if probation and parole revocations proceedings take place - often after a
defendant serves a lengthy sentence. Defendants sometimes reoffend and are
subject to enhanced sentences based on the original conviction. In all these cases
effective representation requires the original case file.”).
11 State of Alaska Records Retention and Disposition Schedule,

Department of Law – Criminal Division (adopted Jan. 16, 2013),
https://archives.alaska.gov/documents/rims/schedules/law/03-679-2.pdf .

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Alaska Court System similarly maintains many criminal case files and records

permanently.12 Advances in electronic record-keeping and electronic file security

have greatly lessened the cost and inconvenience for a lawyer to maintain records

for long periods of time, although precautions must be taken to assure that the

files are secure and kept confidential.13

  The length of time to retain a file is a matter of sound discretion for the

lawyers involved.14 The Committee recommends that a lawyer consider the

severity of the crime, possible consequences to the client from the conviction, the

complexity of the matter, the likelihood that post-conviction relief will be sought,

and whether the file contains information or evidence that cannot be readily

obtained from other sources. The lawyer should consider the cost and means of

long-term storage, security of the information, and how retrieval of the

information will be possible in the future.15 The Committee recommends that the

  12     See Administrative Order No. 25, Appendix B (retention schedule for

felony case files), https://courts.alaska.gov/adbulls/docs/ab25.pdf ; see also AS
40.21.010 et seq. (“Management and Preservation of Public Records”).
13 The Committee believes that retaining electronic copies is sufficient to

meet the lawyer’s obligations, so long as reasonable precautions are taken to
assure that the complete file is preserved, that it is secure, and that it can be
accessed if necessary. See, e.g., Alabama Bar Ethics Op. 2010-2, supra note 9,
at 13 (“[D]ocuments that are originally created and maintained electronically
must be secured and reasonable measures must be in place to protect the
confidentiality, security and integrity of the document. The lawyer must ensure
that the process is at least as secure as that required for traditional paper files.
The lawyer must have reasonable measures in place to protect the integrity and
security of the electronic file.”); Alaska Ethics Op. 2008-1; AS 09.80.090(a).
14 Alaska Ethics Op. 84-9 at 1 (opining, under now-superseded Disciplinary

Rules, that file retention considerations “should be based on a case by case review
of files and documents”).
15 Cf. Nevada State Bar Formal Opinion No. 33 (Feb. 9. 2006) (“[A]n attorney

may use an outside agency to store confidential client information in electronic

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lawyer notify the client of the lawyer’s plan for retaining and destroying the file,

offer to provide the client with the file at the time it is closed, and notify the client

and afford the client a reasonable period of time to request the file prior to

destruction if the lawyer is not keeping the file indefinitely.16 A lawyer retiring

from the practice of law should take appropriate steps to assure that criminal

client files are not lost or destroyed after their retirement.

         In sum, criminal files are unique in that they are more likely to

require future inspection and more likely to be relevant for a longer period of time.

Lawyers handling criminal matters therefore must act with special care in

thinking through file retention practices. While the Rules of Professional Conduct

do not contemplate a specific minimum period of time that all such files must be

kept, a lawyer’s ethical duties to the client dictate that the lawyer carefully

consider criminal file retention issues. The Committee recommends that lawyers

forms, and on hardware located outside the attorney’s direct supervision and
control, so long as the attorney observes the usual obligations applicable to such
arrangements for third party storage services. If, for example, the attorney does
not reasonably believe that the confidentiality will be preserved, or if the third
party declines to agree to keep the information confidential, then the attorney
violates SCR 156 by transmitting the data to the third party. But if the third party
can be reasonably relied upon to maintain the confidentiality and agrees to do so,
then the transmission is permitted by the rules even without client consent.”).
16 Transfer of closed files to clients is particularly plausible given

technological advances allowing lawyers to separately scan and retain closed files
in secure electronic settings. We note, however, that there are certain materials
defense attorneys are prohibited from transferring or delivering to their client.
See, e.g., AS 12.61.120(a) (prohibiting disclosure of certain personal information
to the defendant); Criminal Rule 16(b)(9) (setting forth restrictions on availability
of certain material), and see, Alaska Bar Ethics Op. 2003-3 (“Documents to be
Included in File Returned to Client on Termination of Services”) and 2011-1
(“Must a Lawyer Provide the Original File to a Former Client on Request, Rather
Than a Copy?”).

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and legal agencies handling criminal defense matters take all reasonable

precautions to preserve and protect their client files for an appropriate length of

time, based on the considerations described in this Opinion, after the matter is

completed and the file is closed.

Approved by the Alaska Bar Association Ethics Committee on December 1, 2022.

Adopted by the Board of Governors on February 3, 2023.

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