How long must a California lawyer keep a former client's closed file, and when may the lawyer destroy it?

State Bar of California COPRAC Formal Opinion 2001-157: Retention and Destruction of Former Clients' Files

Short answer: The opinion concludes that the law of deposits (bailments) and the Probate Code govern original papers and property received from the client (including documents delivered under Probate Code section 710); for other "client papers and property" under former Rule 3-700(D), the lawyer must use all reasonable means to notify the client of the file's existence, the right to retrieve it, and the intended destruction, and may destroy the file only if (a) preservation is not required by law and (b) the lawyer has no reason to believe the items are reasonably necessary to the client's representation; the lawyer may have an obligation to examine the file before destroying it, no fixed retention period applies, and criminal-case files cannot be destroyed without the former client's express consent while the former client is alive.

Currency note

This opinion was issued in 2001, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 3-700 and 4-100, together with Business and Professions Code sections 6068(e) and 6149, Probate Code sections 700-735, and Civil Code sections 1813-1847. Current Rules 1.15, 1.16, and 1.6 now address these issues; the analysis below is rooted in the framework as it stood in 2001. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The hypothetical: Attorneys Smith and Jones were dissolving their partnership. Smith was retiring, Jones was moving out of state. Active files had already been transferred to other counsel; the question was what to do with the closed civil and criminal files they no longer wanted to pay storage for.

The committee located the source of the duties in former Rule 3-700(D)(1) (release client papers and property at the client's request) and Business and Professions Code section 6068(e) (preserve client secrets, including written fee agreements under section 6149). The committee noted that California treats client papers and property as belonging to the client, not the attorney, citing Rose v. State Bar (1989), Weiss v. Marcus (1975), and Academy of California Optometrists, Inc. v. Superior Court (1975).

On civil files the committee laid out a step framework. As to originals from the client (including Probate Code section 710 deposits of estate planning instruments), the lawyer's obligations were determined by Civil Code sections 1813-1847 (deposits/bailments) and Probate Code sections 700-735. Probate Code deposits could be terminated only as those sections allowed, and the lawyer had no right to destroy them no matter how much time had passed. The committee suggested that, where it appears reasonably likely the file contains originals or other property, the attorney examine the file for such items.

As to other "client papers and property" within Rule 3-700, the lawyer first had to use all reasonable means to notify the former client of the existence of the file, the client's right to examine and retrieve the contents, and the intended destruction; a clear notice that destruction would occur unless contrary instructions arrived by a specific date would advance the purpose of notice. If the lawyer had no reason to believe items had to be maintained by law or were reasonably necessary to the client's representation, and the client could not be located or did not respond after a reasonable time, the lawyer could destroy. If the lawyer had reason to believe the file contained items required to be retained or reasonably necessary, the lawyer should inspect for those items and retain them for the period required by law or as reasonably foreseeable for the client; the balance could be destroyed.

The committee concurred with The Bar Association of San Francisco Opinion 1996-1 and ABA Informal Opinion 1384 (1977) that no fixed retention period applies. The committee illustrated with an example of an environmental or insurance dispute arising years after a transaction. The committee allowed that some attorneys, in discrete matters, may include in their fee agreements a clause allowing destruction after a specific period without review unless the client has demanded the file, with the caveat that such a clause would be inappropriate where the engagement involved wills or Probate Code deposits.

On criminal files, the committee adopted the position of Los Angeles County Bar Association Formal Opinion 420 (1983): files in criminal matters should not be destroyed without the former client's express consent while the former client is alive. The committee cited California's "Three Strikes" law (Penal Code section 1170.12) as one reason a prior-conviction file could become important long after sentencing.

On the manner of destruction, the committee tied the duty to section 6068(e)'s preservation obligation and noted that section 6068(e) extends beyond attorney-client privilege material, citing Goldstein v. Lees (1975) and California State Bar Formal Opinion 1993-133. The attorney had to use a method of destruction that would ensure no breach of confidentiality; that included client files stored in electronic form.

Common questions

Q: How long does a California lawyer have to keep closed client files?

A: Per the opinion, there is no fixed retention period. The committee agreed with Bar Association of San Francisco Opinion 1996-1 that the duty is rooted in the lawyer's bailee obligation and the need to avoid reasonably foreseeable prejudice to the client, and that no fixed time period adequately measures the duty.

Q: Can a lawyer destroy a file when the former client cannot be found?

A: Per the opinion, the lawyer may destroy if (a) reasonable efforts to notify or obtain instructions have failed, and (b) the lawyer has no reason to believe that the items must be preserved by law or that destruction would prejudice the client (i.e., the items are reasonably necessary to the client's representation). The committee added that the lawyer may have an obligation to examine the file before destroying.

Q: What about original documents the client gave the lawyer?

A: Per the opinion, those are governed by the law of deposits (Civil Code sections 1813-1847) and, for Probate Code section 710 deposits, by Probate Code sections 700-735. Those statutes restrict when the deposit may be terminated; absent a statutory ground, the lawyer has no right to destroy regardless of elapsed time. The committee suggested examining the file for likely originals.

Q: Are criminal-case files treated differently?

A: Per the opinion, yes. The committee concluded, following Los Angeles County Bar Formal Opinion 420 (1983), that files in criminal matters should not be destroyed without the former client's express written consent while the client is alive, given that future utility of the file (cited example: Three Strikes prior-conviction issues) cannot be foreseen.

Q: Can a lawyer build a destruction clause into the fee agreement?

A: Per the opinion, for discrete matters such as claims or litigation, the lawyer may include a fee-agreement clause permitting destruction without review after a reasonable specified period absent a client request. The committee cautioned that such a clause would not be appropriate where the engagement is to write a will or hold documents for safekeeping under the Probate or Civil Codes.

Q: How must the lawyer actually destroy the files?

A: Per the opinion, in a manner that prevents any breach of confidentiality, because the section 6068(e) duty applies to storage, handling, and disposition. The committee extended the point to files stored in electronic form (tapes, floppy disks, hard drives).

Background and rules framework

The opinion interprets former California Rules 3-700 (withdrawal and client file release) and 4-100 (client trust accounts and property safekeeping), together with Business and Professions Code sections 6068(e) (confidentiality) and 6149 (fee agreement as confidential information), Civil Code sections 1813-1847 (deposits), Probate Code sections 700-735 and 710 (deposits of estate planning instruments), and Evidence Code section 957 (privilege continues after death). Functionally these correspond, in current California numbering, to Rules 1.15, 1.16, and 1.6.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-700, particularly 3-700(D) and 3-700(D)(1)
• Former California Rule 4-100, particularly 4-100(B)(3) and 4-100(B)(4)

Statutes:

• California Business and Professions Code sections 6068(e), 6149, 6180.5, 6190.34
• California Civil Code sections 1813-1847 (law of deposits)
• California Probate Code sections 700-735, 710 (safekeeping of estate planning documents)
• California Evidence Code section 957 (privilege after death of client)
• California Penal Code section 1170.12 (Three Strikes law)
• California Government Code section 26205 et seq. (records-reproduction reliability)
• 18 U.S.C. section 1426 (limits on copying certain federal records)

Cases:

• Rose v. State Bar (1989) 49 Cal.3d 646, client owns client papers and property
• Weiss v. Marcus (1975) 51 Cal.App.3d 590, lawyer-client property ownership
• Academy of California Optometrists, Inc. v. Superior Court (Damir) (1975) 51 Cal.App.3d 999, client ownership not affected by fee status
• Metro-Goldwyn-Mayer, Inc. v. Superior Court (Tracinda Corp.) (1994) 25 Cal.App.4th 242, uncommunicated work product question
• Goldstein v. Lees (1975) 46 Cal.App.3d 614, section 6068(e) broader than privilege
• People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, attorney-client relationship formation
• State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, ABA Model Rules as collateral source
• Ramirez v. Fuselier (9 Cir. BAP 1995) 183 Bankr. 583, dicta on Rule 4-100(B)(3)

Other opinions cited:

• The Bar Association of San Francisco Legal Ethics Committee Opinion 1996-1: no fixed retention period
• Los Angeles County Bar Formal Opinion 420 (1983): criminal files require client consent
• Los Angeles County Bar Formal Opinion 475 (1994): five-year retention by analogy to Rule 4-100(B)(3)
• ABA Informal Opinion 1384 (1977): "good common sense" file retention factors
• California State Bar Formal Opinion 1993-133: section 6068(e) scope
• California State Bar Formal Opinion 1994-134: client ownership of files

See also

• CA COPRAC Op. 2015-192: Withdrawal and Client Confidences
• CA COPRAC Op. 2014-190: Duties on Firm Dissolution

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original HTML: https://www.calbar.org/ethics/Opinions/2001-157.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 2001-157

ISSUES:

What ethical duties does an attorney have regarding the retention of former clients' files? Is the attorney ethically required to retain the files for any specific length of time following the completion of representation?

DIGEST:

As to original papers and other property received from a former client, including estate planning and other signed, original documents delivered under Probate Code section 710, the attorney's duties are governed by the law relating to deposits (bailments) or by the Probate Code. With respect to other "client papers and property" to which the former client is entitled under rule 3-700, absent a previous agreement, the attorney has an obligation to make reasonable efforts to obtain the former client's consent to any disposition that would prevent the former client's taking possession of the items. If, after reasonable efforts, the attorney is unable to locate the former client or obtain instructions, the attorney may destroy the items unless he or she has reason to believe (1) that preservation of the items is required by law, or (2) that destruction of the items would cause prejudice to the client, i.e., that the items are reasonably necessary to the client's legal representation. Since the "client papers and property" to which the former client is entitled may include a variety of items, the attorney may have an obligation to examine the file contents before the file is destroyed. No specific time period for retention of a particular item can be specified. Files in criminal matters should not be destroyed without the former client's consent while the former client is alive.

AUTHORITIES INTERPRETED:

Rules 3-700 and 4-100 of the Rules of Professional Conduct of the State Bar of California.

Business and Professions Code sections 6068(e) and 6149.

STATEMENT OF FACTS

Attorneys Smith and Jones are dissolving their partnership. Smith plans to retire; Jones is moving to another state to practice law. Neither wants to pay storage for the closed civil and criminal case files they have accumulated throughout the many years of their practice. All active files have been properly transferred to other attorneys.

DISCUSSION

An attorney's obligations with regard to closed client files are derived from rule 3-700 of the Rules of Professional Conduct and Business and Professions Code section 6068, subdivision (e). Rule 3-700(D)(1) provides that a member whose employment has terminated shall:

"Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. 'Client papers and property' includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."

Rule 3-700(D) appears to contemplate a situation where the matter in which the attorney has represented the client continues after the termination of the lawyer's employment. But it is settled in California that the client papers and property that the client is entitled to receive belong to the client, not to the attorney. (Rose v. State Bar (1989) 49 Cal.3d 646, 655; Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599.) The client's ownership is not altered by the circumstances or the timing of the termination of the attorney-client relationship, or by whether the attorney has been paid for his or her services. (Academy of California Optometrists, Inc. v. Superior Court (Damir) (1975) 51 Cal.App.3d 999, 1005-06; see also Cal. State Bar Formal Opn. No. 1994-134.)

Business and Professions Code section 6068, subdivision (e) requires an attorney, at every peril to himself, to protect the confidential information of the client. Section 6149 declares that a written fee contract is deemed confidential information protected by section 6068, subdivision (e). Thus, the statute and the rule generally impose upon the attorney the ethical obligations:

To release to the client on request "all the client papers and property," including all items "reasonably necessary to the client's representation", and

To safeguard the client's confidential information protected by Business and Professions Code section 6068, subdivision (e).

This opinion addresses these obligations where there has been no request for the client papers and property and the client is a former client whose whereabouts may be unknown.

I. Client Papers and Property in Civil Matters

Given that an attorney's closed files may contain "client papers and property" to which the former client is entitled, the attorney's ethical obligations in regard to these items, in the absence of an agreement to the contrary, are the following:

As to original papers and property received from the former client, including estate planning documents delivered to the attorney pursuant to the Probate Code, the attorney's obligations are determined by the law of deposits (bailments), Civil Code sections 1813 to 1847 and Probate Code sections 700 to 735.

As to other client papers and property to which the former client is entitled under rule 3-700, before disposing of the items, the attorney first must use all reasonable means to notify the former client of the existence of the file, of the former client's right to examine and retrieve the contents, and of their intended destruction. While there is no specific authority as to what such a notice should contain, the purpose of the notice will be advanced if it states plainly that the files in question will be destroyed unless contrary instructions are received by the attorney by a specific date, and gives a reasonable opportunity to respond.

If the attorney has no reason to believe that the items proposed to be destroyed include things required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items.

If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. The balance of the file may be destroyed.

The attorney at all times must protect the confidentiality of the contents of the files, including the fee agreement. (Bus. & Prof. Code, §§ 6068, subd. (e), 6149.)

A. Original materials and materials of inherent value

Acceptance by an attorney of original papers and other property from a client may create special problems because of potential statutory obligations. In the absence of an agreement to the contrary, acceptance of client papers and property delivered by the client is subject to the law of deposit. (Civ. Code, §§ 1813-1847.) Also, estate planning documents and other original signed instruments delivered to an attorney under Probate Code section 710 are to be held for safekeeping subject to the Probate Code sections 700 to 735. These Probate Code sections provide, among other things, that the deposit may be terminated only as permitted by Probate Code sections 731 to 735. Unless terminated as permitted by these sections, the attorney remains responsible for the safe keeping of the items at all times and has no right to destroy them, no matter how long they have been held, and regardless of whether there is reason to believe that destruction would cause foreseeable prejudice or injury to the client. If it appears reasonably likely to the attorney that a particular client file contains original papers or other property deposited by the client, the contents should be examined for such items.

B. Other file contents

As to other "client papers and property" within the meaning of rule 3-700, there is no shortcut, "bright line," rule for determining how long such items contained in a closed file must be maintained or when they may safely be destroyed. The basic principle is that the attorney may destroy a particular item from a former client's file if he or she has no reason to believe that the item will be reasonably necessary to the client's representation, i.e., that the item is or will be reasonably necessary to the former client to establish a right or a defense to a claim.

Opinion 1996-1 of the Legal Ethics Committee of The Bar Association of San Francisco states:

"There is no rule that provides . . . a time period [after which client papers may be destroyed] and, in our view, no rule should. The key to retention of client papers, absent client agreement to other arrangements, is the attorney's obligation as a bailee of the client's personal property and the need to retain those papers that are necessary to preclude reasonably foreseeable prejudice to the client. This duty cannot be discharged merely by reference to a fixed time period."

The Committee agrees with Opinion 1996-1 that the attorney's obligation regarding former client files cannot be measured by a fixed time period. The forseeability, for example, that an environmental or insurance dispute could arise several years after completion of a particular transaction suggests that the need to maintain client papers cannot be measured in all cases by a fixed time period.

Again, the attorney may have an obligation to examine the file contents before destruction. If the attorney is without personal knowledge of the contents of the file, it may be necessary to examine the file before concluding whether there is reason to believe that the client will foreseeably have need of the contents. If the attorney has reason to believe that the file does contain documents that the client will foreseeably need, the file must be examined and the notification to the client should point out the existence of any such documents. Destruction of closed files requires an exercise of judgment. Where an item has no intrinsic value, but the attorney fears that loss of the item will injure the former client, the item should be retained or the information contained therein preserved by microfilming or similar means.

Informal Opinion 1384 (1977) of the American Bar Association Committee on Ethics and Professional Responsibility states that while there is no specific time during which an attorney must preserve all files and beyond which he or she is free to destroy all files, "good common sense" should provide answers to most questions. Among the considerations set forth in that opinion are:

Whether the information to be destroyed or discarded may still be useful in the assertion or defense of the client's position in a matter for which the statute of limitations has not expired; and

Whether the information is that which the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the attorney.

Because of the burden and expense of preserving former client files and the uncertainties that may attend their destruction if contact with the former client has been lost, attorneys handling discrete matters such as claims or litigation might consider including in their written fee agreements a provision that following termination of the representation the contents of the file may be destroyed without review at the end of a specified and reasonable period of time, unless the client has requested delivery of the files to the client. Such agreement would not be appropriate in all circumstances: for example, it would be inappropriate if the attorney were being retained to write a will or hold documents for safekeeping under the Probate Code or Civil Code.

II. Duties in Criminal Matters

Formal Opinion No. 420 (1983) of the Los Angeles County Bar Association Committee on Legal Ethics points out:

"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. The Committee concludes, therefore, that it is incumbent on the attorney in a criminal matter to obtain some specific written instruction from the client authorizing the destruction of the file. Absent such written instruction, the attorney should not undertake the destruction of client files on the attorney's initiative."

Recent adoption of measures such as California's "Three Strikes" law (Proposition 184 of 1994, codified as Penal Code section 1170.12) could make a client file in a matter resulting a prior conviction more important than ever. The Committee concludes that client files in criminal matters should not be destroyed without the former client's express consent while the former client is alive.

III. Manner of Destruction

Business and Professions Code section 6068, subdivision (e) obligates the attorney "at every peril to himself or herself to preserve the secrets" of his or her client. Business and Professions Code section 6149 states that the protection of section 6068, subdivision (e) covers the written fee agreement with the client.

In some circumstances, the attorney-client privilege may continue even after the death of a client. (Evid. Code, § 957.) An attorney's obligation under section 6068, subdivision (e) to preserve the client's secrets extends beyond matters covered by the attorney-client privilege. (Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621, ftnt. 5; Cal. State Bar Formal Opn. No. 1993-133.)

Thus, the duty stated in section 6068, subdivision (e) applies to the storage, handling, and ultimate disposition of the files and papers of former clients. Accordingly, the attorney is obliged to use a method of destruction that will ensure no breach of confidentiality.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.