When an associate leaves a Maine firm, who has to keep the client's file for the 8-year retention period?

Plain-English summary

Bar Counsel asked whether the departing associate or the former firm is responsible for retaining clients' files for eight years under Rule 1.15. The Commission explains that Rule 1.15(f) applies when representation ends and requires attorneys to either return to the client, or retain and safeguard in a retrievable format, all information and data in the lawyer's possession to which the client is entitled, with retained files safeguarded for at least eight years. The rule identifies "a lawyer, or a lawyer's successor" as the responsible party without earmarking the duty to either the handling attorney or the firm.

Because the rule does not assign responsibility, the opinion concludes the allocation often turns on firm policies or employment contracts; when those do not resolve it, the departing attorney who takes files or leaves files behind should clarify who is responsible for retention and notify affected clients of the departure and the resulting location of their files. The opinion stresses that the duty runs to information the client is entitled to: while the departing attorney and the firm may each want to keep file information for their own purposes, the ethical duty exists for the benefit of the former client's right of access, so wherever the information is retained, its location must be clearly communicated to the client.

In practice

Under the Maine rule as the opinion read it in 2010, when an associate leaves a firm, Rule 1.15(f) does not by itself decide whether the departing lawyer or the firm must keep the client's files for the eight-year period; either may bear it, and firm policy or an employment contract often controls. The opinion holds that, where those do not resolve it, the departing attorney who takes or leaves files should clarify retention responsibility and notify affected clients of the departure and where their files will be. It holds the duty is for the benefit of the former client's right of access, so the location of the file information must be clearly communicated to the client regardless of who retains it.

Common questions

Q: Does the departing associate or the old firm have to keep the client files?

A: The opinion concludes Rule 1.15(f) does not assign the duty to either one; it identifies "a lawyer, or a lawyer's successor" as responsible without earmarking the handling attorney or the firm, so either may bear it.

Q: How long must the files be kept?

A: The opinion states that files which are retained must be safeguarded for at least eight years, for information and data to which the client is entitled.

Q: How is responsibility decided in practice?

A: The opinion states firm policies or employment contracts often resolve it; when they do not, the departing attorney who takes or leaves files should clarify retention responsibility and notify the affected clients.

Q: What must the client be told?

A: The opinion concludes that, because the duty exists for the client's right of access, the location of the file information must be clearly communicated to the client, wherever it is retained.

Background and rules framework

The opinion interprets Maine Rule of Professional Conduct 1.15(f) (safekeeping property; return or retention of client files for at least eight years after representation ends), corresponding to ABA Model Rule 1.15. It addresses the allocation of that duty when an associate leaves a firm.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 (safekeeping property)
• Maine R. Prof. Conduct 1.15(f)

See also

• Maine Ethics Op. 219: Lateral Transfers by Attorneys
• ABA Formal Op. 471: Surrendering Papers to a Former Client

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=152001

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: November 1, 2010

Issue

Bar counsel asked the Commission to render an opinion concerning client file retention responsibilities where an associate attorney leaves a law firm. The question presented is: Is the departing attorney or his/her former law firm responsible to retain clients? files for eight years under M. R. Prof. Conduct 1.15?

Opinion

M. R. Prof. Conduct 1.15(f) applies when representation ends. It requires attorneys to either ?return to the client or retain and safeguard in a retrievable format all information and data in the lawyer?s possession to which the client is entitled.? Files that are retained must be safeguarded for at least 8 years. The rule provides only that ?a lawyer, or a lawyer?s successor? is the responsible party, without earmarking that responsibility to either the attorney who handled the client?s case or the attorney?s law firm.

Many law firms will have policies and/or employment contracts which shed light on and often resolve these issues. When they do not, it is up to the departing involved attorney who takes files and/or leaves files behind to clarify retention responsibility and notify the affected client(s) of his/her departure and the resulting location of the client?s files. Factors which may address the determination of responsibility are too numerous to allow for one set rule. Rule 1.15(f) is clear that the duty to either return or retain files applies only to information and data ?to which the client is entitled.? While the departing attorney and/or the departing attorney?s law firm may each wish to retain file information for their own purposes or protection, the attorney?s ethical duty is for the benefit of the former client and his or her right of access to file information. Hence, whether this is accomplished through retention by the departing attorney, the firm, or both, the location of the information must be clearly communicated to the client.