What client-file materials must an Arizona lawyer keep, how should they store them, and what must they give the client?
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This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The Attorney Ethics Advisory Committee took up a request about whether case notes kept in internal practice-management software are part of the client file the client may demand, then expanded the opinion to address file obligations generally. The committee grounds the analysis in the purpose of files: lawyers keep records not for their own sake but because an adequate record of the work is part of competent, diligent representation. The Rules do not list the contents of a file, but ER 1.1, ER 1.3, ER 1.4(a), ER 1.15, and ER 1.16, together with Arizona Supreme Court Rule 41(i), assume an adequate record exists.
On retention, the opinion states the standard as keeping "sufficient information regarding the work they have done for the client to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter" if the lawyer is discharged, withdraws, or cannot continue. The specific materials depend on the nature of the work; a lawyer need not keep every document, so handwritten notes later turned into a memo or a marked-up draft may be discarded once superseded.
On storage, the opinion directs lawyers to consider both preservation (such as backups) and access control. Files may be electronic if security is addressed and the client is not prejudiced, though documents with particular legal or evidentiary status (an ink-signed will or contract) warrant checking with the client before destruction. Files must be maintained on a continuous basis, not organized only after a matter ends, so the practice can be handed off in the event of the lawyer's sudden death or disability. Once a matter concludes, the duty to keep closed files turns on prejudice to the client; at a minimum the lawyer must give notice before destroying a file so the client can request a copy, and returning the file to the client generally satisfies the obligation.
On production, the client is entitled to a copy of the documents the lawyer was required to retain. Per ER 1.16 comment 9, the client is not entitled to internal memoranda relating solely to practice management such as billing, scheduling, and staffing. The right turns on the nature of the document, not where it was stored. The client gets one copy for free; the lawyer may charge for additional or special copies, and documents already provided during the representation need not be furnished again for free.
In practice
The opinion holds that, under the Arizona Rules as they stood in 2020, the test for what a lawyer must retain and produce is whether the materials let the client understand the work and let a successor lawyer continue it, with prejudice to the client as the touchstone for closed-file retention and destruction. Internal practice-management memoranda fall outside the client's entitlement under ER 1.16 comment 9. Because rules and later opinions may have changed since 2020, verify the current ER 1.16 framework before relying on these specifics.
Common questions
Q: Are a lawyer's internal case notes part of the client file the client can demand?
A: Not if they are internal practice-management memoranda. The opinion applies ER 1.16 comment 9, under which the client is entitled to documents reflecting the work performed but not internal memoranda relating solely to billing, scheduling, and staffing; the right turns on the document's nature, not its storage location.
Q: Can an Arizona lawyer store client files only in electronic form?
A: Yes, the opinion permits electronic-only storage provided security considerations (preservation and access control) are addressed and the client is not prejudiced. It notes that some hard-copy documents carry particular legal or evidentiary status, so the lawyer should check with the client or offer to return them before destroying them.
Q: Can a lawyer charge the client for a copy of the file?
A: The client is entitled to a single copy for free. The opinion states the lawyer may charge for additional copies or special copying requests with associated costs, and need not re-furnish for free documents already provided during the representation.
Q: How long must a lawyer keep a closed file?
A: The opinion ties the duty to prejudice to the client rather than a fixed period. At a minimum the lawyer must give sufficient notice before destroying a file so the client can request a copy while it remains available, and returning the file to the client generally satisfies the obligation.
Background and rules framework
The opinion interprets the Arizona Rules that assume an adequate file exists: ER 1.1 (competence; Model Rule 1.1), ER 1.3 (diligence; Model Rule 1.3), ER 1.4(a) (keeping the client informed and responding to requests; Model Rule 1.4), ER 1.15 (safekeeping property; Model Rule 1.15), and ER 1.16(d) and comments 9 through 11 (surrendering documents on termination; Model Rule 1.16). It also relies on Arizona Supreme Court Rule 41(i), which makes planning for the lawyer's inability to continue a practice a duty of membership. The committee treats prior State Bar of Arizona ethics opinions on file obligations as nonbinding but relevant.
Citations and references
Rules of Professional Conduct:
- MR 1.1 / Arizona ER 1.1 (competence)
- MR 1.3 / Arizona ER 1.3 (diligence)
- MR 1.4 / Arizona ER 1.4(a) (communication)
- MR 1.15 / Arizona ER 1.15(d) (safekeeping property; prompt delivery and accounting)
- MR 1.16 / Arizona ER 1.16(d), cmts. 9-11 (surrender of file on termination)
Other authority:
- Arizona Supreme Court Rule 41(i) (duty to plan for inability to continue a practice)
Other opinions cited:
- State Bar of Arizona Ethics Op. 98-07: abandoned-file procedure after reasonable effort to return
- State Bar of Arizona Ethics Ops. 15-02, 09-04, 09-02, 08-02, 07-02, 05-04, 04-01, 93-03, 91-01: prior file-obligation guidance
See also
- ABA Formal Op. 471: Surrendering File Papers to a Former Client
- ABA Formal Op. 92-369: Files of a Deceased Sole Practitioner
- AZ Ethics Op. EO-20-0001: Duties When the Representation Ends
- Alabama Ethics Op. 2010-02: Retention and Destruction of Client Files
Source
- Landing page: https://www.azcourts.gov/cld/Attorney-Ethics-Advisory-Committee/Opinions-Issued-by-the-Committee
- Original PDF: https://www.azcourts.gov/Portals/0/26/AEA%20Committee/Issued%20Opinions/EO-19-0009.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
SUPREME COURT OF ARIZONA
ATTORNEY ETHICS ADVISORY COMMITTEE
Ethics Opinion File No. EO-19-0009
The Attorney Ethics Advisory Committee was created in accordance with Rule 42.1 and Administrative Order Nos. 2018-110 and 2019-168.
Lawyers must retain sufficient information regarding the work they have done on a matter to permit the
client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the
lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death,
disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they
keep, how they store and organize those materials, and what they do with records at the end of a
representation.
ISSUE PRESENTED:
What are the ethical duties of lawyers regarding retaining client files and providing clients with
access to those files?
FACTUAL BACKGROUND:
The Committee received a request for an opinion regarding whether case notes maintained in
internal practice management software constitutes a portion of the client file to which the client is entitled
upon request. The topic of file-related obligations is not one the Committee has previously had the
opportunity to address, though it has been the subject of numerous advisory opinions from the State Bar’s
ethics committee. Given the relevance of this topic and the frequency of requests for guidance through
opinion requests and the ethics hotline, the Committee has expanded the scope of this opinion to address
file-related obligations more generally.
RELEVANT ETHICS OPINIONS:
State Bar of Arizona, Rules of Professional Conduct Committee, Opinion Nos. 15-02, 09-04, 09
02, 08-02, 07-02, 05-04, 04-01, 98-07, 93-03, 91-01.
APPLICABLE ARIZONA RULES OF PROFESSIONAL CONDUCT:
ER 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
ER 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
COMMENT
[1] . . .. [A] lawyer may have authority to exercise professional discretion in determining the means
by which a matter should be pursued.
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ER 1.4 Communication
(a) A lawyer shall:
(2) reasonably consult with the client about the means by which the client’s objectives are to be
accomplished.
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information;
ER 1.15 Safekeeping Property
(d) . . . . Except as stated in this Rule or otherwise permitted by law or by agreement between the
client and the third person, a lawyer shall promptly deliver to the client . . . any funds or property
that the client . . . is entitled to receive and, upon request by the client . . . shall promptly render a
full accounting regarding such property.
ER 1.16 Declining or Terminating Representation
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable
to protect a client’s interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering documents and property to which the client is entitled
and refunding any advance payment of a fee that has not been earned. Upon the client’s request,
the lawyer shall provide the client with all of the client’s documents, and all documents reflecting
work performed for the client. The lawyer may retain documents reflecting work performed for
the client to the extent permitted by other law only if retaining them would not prejudice the client’s
rights.
COMMENT
[9] Ordinarily, the documents to which the client is entitled, at the close of the representation,
include (without limitation) pleadings, legal documents, evidence, discovery, legal research, work
product, transcripts, correspondence, drafts, and notes, but not internal practice management
memoranda. A lawyer shall not charge a client for the cost of copying any documents unless the
client already has received one copy of them.
[10] Even if the lawyer has been discharged by the client, the lawyer must take all reasonable
steps to avoid prejudice to the rights of the client.
[11] Lawyers may fulfill their ethical obligations with respect to client files by returning the file
to the client. File retention policies should be disclosed to the client, preferably in writing and at
the inception of the relationship.
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Arizona Supreme Court Rule 41. Duties and Obligations of Members
The duties and obligations of members shall be:
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(i) To protect the interests of current and former clients by planning for the lawyer’s termination of
or inability to continue a law practice, either temporarily or permanently.
OPINION
Lawyers do not maintain files for the sake of preserving files, but rather because keeping records of what
they have done or plan to do in the course of representation is part of diligent, competent representation.
The Rules of Professional Conduct do not expressly describe what the contents of a lawyer’s file should
be, but they do impose obligations that assume the existence of an adequate record of the lawyer’s work.
Those obligations include:
• Providing competent representation that demonstrates the “thoroughness and preparation
reasonably necessary.” ER 1.1.
• Keeping the client “reasonably informed” about the status of the matter the lawyer is handling.
ER 1.4(a)(3).
• Promptly complying with reasonable requests for information. ER 1.4(a)(4).
• Planning for the lawyer’s inability to continue their law practice, either temporarily or permanently,
including through unanticipated circumstances beyond the lawyer’s control. Ariz. S. Ct. R. 41(i).
• Taking steps to avoid prejudice to a client who terminates the lawyer’s representation, including
by providing the client with both “the client’s documents” and all documents “reflecting work
performed for the client.” ER 1.16.
These obligations serve as the touchstone for determining the answers to practical questions about what
files lawyers should retain and how they should retain them. Moreover, because the focus of record-keeping
analysis is based on the purpose of making or retaining a document, the guidance that follows applies to all
records generated in the course of a representation, regardless of whether they are in hard copy or electronic
form or where they are stored in a system that intermingles them with documents to which the client is not
entitled.
What Materials Must Lawyers Retain in Their Files?
Lawyers must retain sufficient information regarding the work they have done for the client to permit the
client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the
lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death,
disability, or discipline.
The specific materials to be kept will depend on the nature of the work being done. Lawyers do not need
to keep every document generated in the scope of the representation, so long as the materials kept in their
file are sufficient to meet the standard above. For example, a lawyer may discard handwritten notes that
are later turned into a memo or may mark up a draft brief by hand and discard that copy once the edits have
been made.
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How Should Lawyers Store Their Files?
Lawyers should consider the security of their files when determining how to store them. Security
considerations include both preservation (such as maintaining backup copies) and access (ensuring that
unauthorized persons may not have access).
Files may be stored in electronic, rather than hard-copy form, provided that security considerations are
addressed, and the client is not otherwise prejudiced. For example, certain hard copy documents may have
particular legal or evidentiary status, such as ink-signed wills or contracts. It is advisable to check with the
client or offer to return the document before destroying hard copy documents provided by the client to the
lawyer.
Lawyers should maintain organized files so that they may be promptly provided to clients in the event of
termination, withdrawal, or inability to continue representation. Files must be continuously maintained,
rather than organized only after a representation, transaction, or proceeding, so that clients can be assisted
in the event of lawyer’s sudden, unanticipated death or disability. See Ariz. S. Ct. R. 41(i).
Once a matter has concluded, the lawyer’s obligation to continue to retain closed files depends on the nature
of the representation and the documents. Again, prejudice to the client is the standard on which the lawyer’s
obligation is judged. At a minimum, lawyers must give a client sufficient notice before a file is destroyed
to permit the client to request a copy while the file remains available. In addition, lawyers can generally
satisfy their obligations by returning files to the client. 1
Rather than waiting until an issue arises, or until the conclusion of the representation, lawyers are
welladvised to communicate with their clients about their file retention and access practices early in the
representation. Lawyers can obtain informed consent to a file retention policy in advance by incorporating
it into an engagement letter or similar paperwork, provided disclosure to the client is adequately clear.
What File Materials Must Be Provided to Clients?2
The client is entitled to a copy of the file documents the lawyer was required to retain, as described above.
Per ER 1.16, comment 9, the client is not entitled to internal memoranda that relate solely to practice
management issues such as billing, scheduling, and staffing. The client’s right to a copy of file documents
is based on the nature of the documents, rather than the location where the documents were stored. Lawyers
will find it easier to comply with their duty to provide a copy of the file to the client, and to do so promptly,
if they store their files in a manner that separates or flags the documents that must be produced from those
that need not.
The client is entitled to a single copy for free, and the lawyer may charge for additional copies or special
copying requests that have associated costs, such as, scanning a file maintained in paper form. Lawyers
may satisfy their obligations by providing copies throughout the representation, and do not need to provide
additional free copies of those documents previously provided at the end of the representation. Of course,
the lawyer may choose to provide more documents or copies than are required.
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If a lawyer makes a reasonable effort to return the file to the client and to give notice that the file will be destroyed
if the client cannot be reached to receive the returned file, then the lawyer may treat the file as abandoned property
subject to applicable law. See State Bar of Arizona, Rules of Professional Conduct Committee, Opinion No. 98-07. 2
Note that this opinion addresses only what the client is entitled to under the Rules of Professional Conduct. The client
may be entitled to more or different documents in other contexts, for example in the context of legal malpractice
litigation.
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