How long must a lawyer keep client files, and what should a lawyer do with funds belonging to a client who cannot be located?

Plain-English summary

The committee addressed three questions from a member about closing out an old practice. On file retention, it concluded the length of time a file should be kept depends largely on the importance of the file's contents. If disposal is desired, the client should be notified and asked to pick up the material or give authority to dispose of it; where the client is not available, the file should be checked first to be certain no important papers are destroyed.

On funds held for a client who cannot be located, the committee found no obligation to invest the funds, but advised depositing them in a trust account in the client's name, with the lawyer as trustee, at a bank or savings and loan association where the funds would be insured and would draw interest.

On the third question, the committee was in doubt about the propriety of issuing a settlement check solely to the wife where both husband and wife had executed the release, because if the husband had an interest in the funds he might thereby be precluded.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 11 and 37 of the Canons of Professional Ethics; the subjects are now addressed by Rule 5-1.1 (trust accounts) and Rule 4-1.16 (declining or terminating representation, including return of client materials) of the Rules Regulating The Florida Bar (Model Rules 1.15 and 1.16). The Bar's note to this opinion points to current Rule 5-1.1(f) on unidentifiable trust fund accumulations and trust funds held for missing owners. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: How long does a lawyer have to keep a closed client's file?

A: The committee concluded the retention period depends largely on the importance of the file's contents. Before disposing of a file, the client should be asked to pick up the material or authorize disposal; if the client is unavailable, the file should be checked to be sure no important papers are destroyed.

Q: What should a lawyer do with money held for a client who cannot be found?

A: The committee found no obligation to invest the funds, but advised depositing them in a trust account in the client's name, with the lawyer as trustee, where the funds would be insured and draw interest. The Bar's note directs readers to current Rule 5-1.1(f) on funds held for missing owners.

Q: Can a lawyer issue a settlement check to one spouse when both signed the release?

A: The committee was doubtful. Where both husband and wife had executed the release, it questioned the propriety of issuing a check solely to the wife, because if the husband had an interest in the funds he might be precluded.

Background and rules framework

The opinion applied former Canons 11 (handling trust property) and 37 (confidences of a client) of the Canons of Professional Ethics. The handling of client and third-party funds is now governed by Rule 5-1.1 of the Rules Regulating The Florida Bar, including subsection (f) on unidentifiable accumulations and funds held for missing owners; the return of client files and materials on termination is addressed by Rule 4-1.16 (Model Rules 1.15 and 1.16).

Citations and references

Rules of Professional Conduct:

• Canons 11, 37 [Canons of Professional Ethics; see current Rules 5-1.1 (incl. 5-1.1(f)), 4-1.16]

See also

• FL Bar Ethics Op. 69-1: Withdrawing Partner and Client Files
• FL Bar Ethics Op. 65-10: Asserting a Retaining Lien

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-63-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-63-3.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 63-3
June 25, 1963
Advisory ethics opinions are not binding.
The length of time a lawyer's files should be maintained depends largely on the importance of a file's contents. If the client is available, he should be requested to pick up the contents or authorize the attorney to dispose of the material. There is no obligation to invest funds of clients who cannot be located, but they should be deposited in a trust account where they would be insured and draw interest. When a settlement was effectuated on behalf of a wife, and both husband and wife executed the release, it is doubtful that it would be proper to issue a check to the wife alone.
Note: See Rule 5-1.1(f) regarding "Unidentifiable Trust Fund Accumulations and Trust Funds Held for Missing Owners."
Canons: 11, 37
Chairman Holcomb stated the opinion of the committee:
The Professional Ethics Committee has considered the matters presented by a member of The Florida Bar relative to disposal of old files and other matters.
With regard to the disposal of files, we believe that the length of time a file should be maintained depends largely on the contents of the file itself. However, if it is desired to dispose of a file, we believe that the client should be notified and asked to pick up the material or give authority to dispose of it in case there is any question. Where the client is not available, we believe it desirable to check the file for certainty that no important papers are being disposed of before destroying them.
As to funds held on behalf of a client who cannot be located, we find no obligation to invest the funds, but believe it would be advisable to deposit the same in a trust account in the name of the client, with the lawyer as trustee, with some bank or savings and loan association where the funds would be insured and would draw interest.
With regard to the third question, we are somewhat in doubt as to the propriety of issuing a check solely to the wife because, if the husband had some interest in the funds, he might thereby be precluded.