When a lawyer closes a practice, can the lawyer destroy the files of clients who do not respond to a notice letter after 90 days?

Plain-English summary

The inquiry came from a young lawyer diagnosed with terminal cancer who asked how to dispose of his client files, specifically whether, after sending a letter advising clients of his plan, he could destroy the files of clients who did not respond within 90 days. The committee began from the principle that the disposition of client files must place primary emphasis on the client's wishes, pointing to EC 4-6, the only Code provision addressing maintenance of client files, which directs that the client's instructions and wishes be a dominant consideration when a lawyer's practice terminates by death, disability, or retirement.

The committee held that the lawyer must attempt to contact all clients whose files he holds, by letter to the last known address or, where no address exists, by publication, asking each client to retrieve the file or consent to its destruction (citing Opinion 71-62). It declined to set a fixed retention period, explaining that the contents of a file, not its date, should govern how long it is kept, because some files may contain original documents vital to a client's interests (citing Opinion 63-3).

The committee concluded that client files cannot be automatically destroyed after 90 days. The files of clients who do not respond must be reviewed individually and may be destroyed only after the attorney is satisfied no important papers are in them; any important papers found should be indexed and either placed in storage or turned over to the attorney who assumes control of the active files. The committee noted it was not setting hard and fast rules and that this lawyer's closed files were not old enough to obviate the need for review.

Currency note

This opinion was issued in 1981, before The Florida Bar's adoption of the 2006 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 Treat this page as historical context, not current guidance.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: Can a closing lawyer destroy files after 90 days if clients do not respond?

A: The opinion concluded files cannot be automatically destroyed after 90 days; the file of any client who does not respond must be reviewed individually first.

Q: What must the lawyer do to reach clients?

A: The opinion concluded the lawyer must make a diligent attempt to contact all clients, by letter to the last known address or, if none exists, by publication, asking them to retrieve the file or consent to destruction.

Q: How long must a file be kept?

A: The opinion declined to set a fixed period, concluding that the contents of the file, not its date, should dictate how long it is retained.

Q: What happens to important papers in an unreachable client's file?

A: The opinion concluded such papers should be indexed and either placed in storage or turned over to the attorney who assumes control of the lawyer's active files.

Background and rules framework

The opinion interprets CPR EC 4-6 on protecting client confidences and property when a practice terminates, which corresponds to the confidentiality duty of Model Rule 1.6 and the duties on terminating representation, including return of client property, under Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• CPR EC 4-6 (Model Rule 1.6, confidentiality; Model Rule 1.16, terminating representation)

Other opinions cited:

• Fla. Ethics Opinions 63-3 and 71-62

See also

• FL Bar Ethics Op. 06-1: Electronic Storage of Law Firm Files
• FL Bar Ethics Op. 10-3: Confidential Information of a Deceased Client
• FL Bar Ethics Op. 03-1: Purchasing a Law Practice From a Deceased Attorney's Estate

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-81-8/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-81-8-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 81-8
January 16, 1981
Advisory ethics opinions are not binding.

A lawyer who intends to dispose of clients' files should make a diligent attempt to contact all clients and determine their wishes concerning their files. The file of any client who cannot be located must be reviewed individually and may be destroyed only after it is determined that no important papers of the client are in the file. A lawyer who is closing his practice should place files containing important papers in storage or turn them over to the attorney who assumes control of his active files.

CPR: EC 4-6
Opinions: 63-3, 71-62

Vice Chairman Mead stated the opinion of the committee:

This is an unusual inquiry from a young lawyer who has been diagnosed as having terminal cancer and who, in view of his limited life span, has requested advice as to the disposition of his client files. Specifically, the attorney asks if, after sending a letter to his clients advising them of his proposed course of action, he can destroy the files of those clients who do not respond (or who express no desire to retrieve their files) after a period of 90 days.

In disposing of clients' files, for whatever reason, the attorney must place primary emphasis on the desires of the client. The only provision of the Code of Professional Responsibility dealing specifically with the subject of the maintenance of client files is EC 4-6, which states in part:

A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.

It is incumbent upon the attorney to make an attempt to contact all clients whose files are in his possession. As this Committee stated in Opinion 71-62, "written inquiry should be sent requesting clients' advice as to their wishes in disposing of their files." This communication can be made by sending a letter to each clients' last known address or, if there is no address available, by publication in the local newspaper, requesting the client either to pick up his files or to give permission for their destruction.

This Committee has never attempted to delineate the specific period of time that a client's file must be kept by a lawyer; indeed, it is the contents of the file, not its date, that should dictate the length of time a file is to be retained. There may be some original documents in the file that are vital to a client's interests and which must be preserved regardless of when they were prepared or executed. We adhere to the statement of this Committee in Opinion 63-3 that "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."

After a diligent attempt to contact all clients whose files are subject to destruction, the attorney should then dispose of all files in accordance with his clients' directives. The problem, of course, arises in connection with those clients who cannot be reached. We have a deep feeling for the inquiring attorney's situation and we appreciate his desire to proceed in accordance with the guidelines established in the Code; however, it is our opinion that client files cannot be automatically destroyed after 90 days, but that the files of those clients who do not respond must be reviewed individually by the attorney and can be destroyed by him only after he is satisfied that no important papers of the clients are contained in the file. If the attorney does find any such papers, he should have them indexed and either placed in storage or turned over to any attorney who assumes control of his active files.

Obviously, this is the first inquiry of this nature to be considered by the Committee, and we are not attempting to set forth hard and fast rules in making our determination. However, we note that the inquiring attorney has been in practice only slightly more than seven years and his closed files are not so old as to obviate the need for review.