May a California law firm destroy office files of a deceased client when there is no preexisting agreement or statute governing disposition, and is notice to the legal representatives or residuary legatees required?

Currency note

This opinion was issued in 1997, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 3-700(D) corresponds to current Rule 1.16(e). 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered a private law firm whose members had died or were retiring. Over twenty-five years of representation of a now-deceased client (a person of renown), the firm had accumulated letters and documents with confidential information whose papers may have had significant pecuniary value. No written agreement or instructions governed file retention.

The committee identified that what constitutes client papers and property is addressed in prior opinions, and assumed for purposes of this inquiry that the files consist of papers that would have had to be returned under former Rule 3-700(D) had the client requested them. The committee identified prior treatments of when an attorney may destroy client files (LACBA Formal Opinion 475 and Bar Association of San Francisco Formal Opinion 1996-1).

Quoting Formal Opinion 475, the committee identified that "the file belongs to the client" and the client may find value in the file even after a matter is over; the attorney has an ethical obligation to try to return files or to obtain authorization to destroy them. The committee identified that, after notice or diligent effort to give notice, and sufficient time after the matter is closed (Formal Opinion 475 recommended at least five years for civil matters and the client's life for criminal matters), files could be destroyed unless the former client requested otherwise.

The committee identified the San Francisco committee's alternative framework (Formal Opinion 1996-1) of retaining files only so long as necessary to preclude reasonably foreseeable prejudice to the client, citing Academy of California Optometrists v. Superior Court.

Applying these principles to the inquiry, the committee identified that the client was deceased, no pending litigation existed, no apparent reasonably foreseeable possibility of needing to protect the deceased client's interests existed, and sufficient time had passed. The committee concluded that the firm could destroy the deceased client's files without notice, except for documents of intrinsic value (defined in Formal Opinion 475 as money orders, traveler's checks, stocks, bonds, wills, original deeds, original notes, judgments, and the like, or documents that create or extinguish legal rights) and documents of significant pecuniary value.

Because the documents might have significant pecuniary value due to the deceased client's renown, the committee concluded that reasonable efforts to notify the legal representatives or legatees were required, with an opportunity to inspect or take valuable documents, subject to the firm's confidentiality obligations under section 6068(e).

The committee identified the firm's obligation to comply with Probate Code sections 700 et seq. with respect to any estate-planning documents on deposit. The committee identified that the duty to preserve the deceased client's confidences and secrets survives the client's death (citing LACBA Formal Opinion 414 and Hood, 7 Geo. J. Legal Ethics 741). However, because the lawyer-client privilege devolves on the client's personal representative until that representative is discharged (Evidence Code section 953(c)), disclosure of confidential information to that representative may not violate the duty of confidentiality (citing State Bar Formal Opinions 1988-96 and 1994-134 and noting Moeller v. Superior Court on successor trustees).

The committee also identified that, where there is an objection to destruction and the firm believes confidentiality issues should prevent turning over papers, the firm should consider obtaining appropriate declaratory relief from a court.

Common questions

Q: May a California firm destroy a deceased client's office files without notifying the legal representatives or legatees?

A: Per the opinion, yes, but only where (i) no matter is pending and no reasonably foreseeable need exists to pursue or protect the deceased client's legal interests and (ii) the firm reasonably believes there are no documents of significant pecuniary or intrinsic value. Otherwise, the firm must give or attempt to give notice.

Q: Does the duty of confidentiality survive the client's death?

A: Per the opinion, yes. The committee identified that the duty under Business and Professions Code section 6068(e) survives, though the privilege devolves on the client's personal representative until discharge, who may waive the privilege in the estate's interest.

Q: What counts as a document of "intrinsic value"?

A: Per the opinion (quoting Formal Opinion 475), money orders, traveler's checks, stocks, bonds, wills, original deeds, original notes, judgments, and the like, or documents that create or extinguish legal rights.

Q: What if the firm reasonably believes the files contain documents of significant pecuniary value?

A: Per the opinion, reasonable efforts to notify the deceased client's legal representatives or legatees are required, with an opportunity to inspect or take valuable documents, subject to confidentiality obligations.

Q: May the firm sell confidential papers of a deceased client to a third party?

A: Per the opinion (citing footnote 7), only if the firm obtains consent of the client's successors in interest and the action does not violate duties under Business and Professions Code section 6068(e).

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 3-700(D) (return of client papers on termination), Business and Professions Code section 6068(e) (duty of confidentiality, surviving the client's death), and Evidence Code sections 953(c) and 954(c) (privilege devolves on personal representative). The Probate Code sections 700 et seq. govern estate-planning documents on deposit.

Citations and references

Rules of Professional Conduct (former):

• California Rule 3-700(D) (return of client papers)

Statutes:

• California Business and Professions Code section 6068(e)
• California Evidence Code sections 953(c), 954(c)
• California Probate Code sections 700 et seq.

Cases:

• Academy of California Optometrists, Inc. v. Superior Court, 51 Cal.App.3d 999 (1975), duty to avoid foreseeable prejudice
• In Re Soale, 131 Cal.App. 144 (1916), duty of confidentiality
• Moeller v. Superior Court, 1997 LEXIS 7904 (Cal. 1997), successor trustee as holder of privilege

Other opinions cited:

• Bar Association of San Francisco Formal Opinions 1984-1, 1996-1
• LACBA Formal Opinions 330, 362, 405, 414, 436, 475
• San Diego County Bar Formal Opinion 1977-3
• State Bar Formal Opinions 1988-96, 1994-134

Other:

• Witkin, California Evidence, "Representative or Successor," section 1116 (3d ed. 1996)
• Hood, "The Attorney-Client Privilege and a Revised Rule 1.6: Permitting Limited Disclosure After the Death of the Client," 7 Geo. J. Legal Ethics 741 (1994)

See also

• LACBA Opinion 493: Disputes Between Former Clients Over Transfer of Original Client Files
• LACBA Opinion 478: Medical Liens and Disbursement of Client Funds

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010619