How long must a lawyer keep a former client's closed files, when may the files be destroyed, and may the client be charged for delivery or storage?

Plain-English summary

Opinion 283 (adopted July 15, 1998) revisited a lawyer's obligations when disposing of a former client's closed or "dead" files. It replaced the committee's earlier opinions 168 (1986) and 206 (1989), which had been decided under the prior D.C. Code of Professional Responsibility, and sorted the contents of a closed file into three categories with different duties attached to each.

The first category was valuable property, meaning items with intrinsic value or that directly affect valuable rights, such as securities, negotiable instruments, deeds, settlement agreements, and wills. The committee held this property is governed by Rule 1.15(b): the lawyer must promptly deliver it and, if that is not possible, must safeguard it indefinitely until it can be returned to the client, a successor, or a representative, or until the lawyer invokes state escheat or unclaimed-property procedures. Destroying valuables in a client file would be unethical.

The second category was all other client property, governed by Rule 1.16(d). The committee concluded that the soundest practice is to set the disposition of files by agreement at the start or end of the representation. Absent such an agreement, on termination the lawyer must make a reasonable, good-faith effort to notify the former client and follow the client's instructions to hold, return, or destroy the files. Where the client cannot be located or does not respond, the committee adopted a general five-year retention period: after a final attempt to reach the client, a lawyer may destroy materials "not reasonably necessary to protect a client's interest" five years after the representation ends, subject to guidelines (drawn from ABA Informal Opinion 1384) about not destroying documents the lawyer is legally obligated to keep, original client documents, or material still useful while a limitations period runs. The third category, non-client material that does not clearly belong to the client or a third party, may be destroyed without notice, though the committee noted it could not decide questions of property law.

On costs, the committee concluded that, absent an agreement to the contrary, a lawyer has no affirmative duty to pay to deliver files not reasonably necessary to protect the former client; because Rule 1.16(d) requires only that the lawyer "surrender" the files, the lawyer may make them available for pickup or delivery at the client's expense and may charge for storage the client directs. The committee also concluded the lawyer may charge a reasonable fee for the time spent reviewing closed files before disposition, since that review benefits the client.

Currency note

This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 revisions to the 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 before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: How long did the opinion say a lawyer must keep a former client's closed files?

A: The opinion adopted a general five-year retention period, running from the termination of representation, for non-valuable files where the client cannot be located or does not respond, after which materials not reasonably necessary to protect the client's interest may be destroyed.

Q: Could a lawyer ever destroy items of value in a client file?

A: No. The opinion concluded that, under Rule 1.15(b), valuable property must be delivered promptly or safeguarded indefinitely, and that destroying valuables in a client file would be unethical; if delivery is impossible the lawyer may resort to state escheat or unclaimed-property procedures.

Q: Could the lawyer charge the former client for shipping or storing the closed files?

A: The opinion concluded that, absent an agreement to the contrary, a lawyer need not pay to deliver files that are not reasonably necessary to protect the former client; the lawyer may make them available at the client's expense and may charge for storage the client directs.

Q: Could the lawyer bill for time spent reviewing the files before returning or destroying them?

A: The opinion concluded yes, absent agreement otherwise: because the review is undertaken for the client's benefit, the lawyer may charge a reasonable fee for the time and costs of file review.

Background and rules framework

The opinion interpreted D.C. Rule 1.15(b) (safekeeping property), Rule 1.16(d) (steps to protect a client's interests on termination, including surrendering papers and property to which the client is entitled), Rule 1.8(i) (the lawyer may retain papers to the extent permitted by that rule), and Rule 3.4(a) (fairness to opposing party and counsel), with confidentiality of discarded files governed by Rule 1.6. It drew its destruction guidelines from ABA Informal Opinion 1384 and the practice of several other jurisdictions.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.15(b) / Model Rule 1.15 (safekeeping property)
• D.C. RPC 1.16(d) / Model Rule 1.16 (protecting client interests on termination)
• D.C. RPC 1.8(i), 3.4(a), 1.6 / Model Rules 1.8, 3.4, 1.6 (retaining papers; fairness; confidentiality)

Other opinions cited:

• D.C. Ethics Ops. 168 (1986), 205 (1989), 206 (1989), 219; ABA Informal Op. 1384 (1977); ABA Informal Op. 1376 (1977)
• New York Ethics Op. 623 (1991); Wisconsin Ethics Op. E-98-1 (1998); Kentucky Ethics Op. E-300 (1985)

See also

• ABA Formal Op. 471: Surrendering the Client File
• AL Ethics Op. 1993-10: Retaining and Destroying Files
• DC Ethics Op. 288: Congressional Subpoena for Client Files

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-283