When a lawyer serves as a neutral arbitrator or mediator, do the ethics rules require keeping the case files for any set period or notifying the parties before destroying them?

Plain-English summary

A lawyer who had frequently been appointed to mediate or arbitrate civil matters had amassed more than 300 concluded files and wished to destroy them within one year of each assignment's conclusion, reasoning that as a neutral the lawyer had formed no attorney-client relationships. The lawyer asked whether the ethics rules imposed any retention requirement.

The opinion examined the record-retention provisions tied to representation. MRPC 1.15(a) requires complete records of client account funds and property to be preserved for five years after termination of the representation, and MRPC 1.16(d) protects a client's papers and property on termination of representation. The opinion concluded that a neutral arbitrator or mediator is generally not engaged in a "representation" under MRPC 1.12(d), because there is no lawyer-client relationship, which would be inconsistent with serving as a neutral. The opinion reserved the different question of a partisan arbitrator on a multi-member panel, which it did not need to reach.

Because the neutral is not engaged in a representation, the opinion concluded the Rules are silent and impose no retention or notice requirements on a lawyer acting as a neutral arbitrator or mediator. The opinion noted (as a matter outside the Rules and the Committee's competence) that MCR 3.602(I) allows confirmation of an arbitration award if a proceeding is begun within one year, so retaining files for at least a year and confirming no proceeding is pending before disposal would be advisable, and that a court confirming an award may have equitable powers bearing on the question. The opinion drew no distinction between arbitrators and mediators, noting both share the characteristic of neutrality (reflected in MCR 2.403(E) and MCR 2.003) that is inconsistent with the representation addressed by the Rules' retention provisions.

Currency note

This opinion was issued in 1994, before later amendments to the Michigan Rules of Professional Conduct. MRPC 1.12, 1.15, and the court rules cited have since been amended, and subsequent rule changes 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 Treat this page as historical context, not current guidance.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: Do the ethics rules require a neutral arbitrator or mediator to keep files for a set time?

A: No. The opinion concluded the Rules are silent and impose no specific retention period, because a neutral is not engaged in a representation.

Q: Why don't the trust-record and file-return rules apply?

A: The opinion concluded MRPC 1.15(a) and 1.16(d) are tied to a "representation," and under MRPC 1.12(d) a neutral arbitrator or mediator is not engaged in one, so those provisions do not govern.

Q: Is there any practical reason to keep the files anyway?

A: The opinion noted, outside the Rules, that MCR 3.602(I) allows confirmation of an award within one year, so it would be advisable to retain files at least that long and confirm no proceeding is pending before disposal.

Background and rules framework

The opinion interprets the representation-linked provisions of the Michigan Rules. MRPC 1.15(a) (Model Rule 1.15) requires safekeeping client property and preserving account records for five years after the representation ends. MRPC 1.16(d) (Model Rule 1.16) protects a client's papers and property on termination of representation. MRPC 1.12(d) (Model Rule 1.12) addresses lawyers serving as third-party neutrals and confirms that a neutral arbitrator is generally not in a representation. The opinion also referenced MCR 3.602 (arbitration), MCR 2.403(E) (mediation), and MCR 2.003 (judicial disqualification) for the neutrality characteristic shared by arbitrators and mediators.

Citations and references

Rules of Professional Conduct:

• MR 1.12 / MRPC 1.12(d) (former judge, arbitrator, mediator, or other third-party neutral)
• MR 1.15 / MRPC 1.15(a) (safekeeping property; five-year record retention)
• MR 1.16 / MRPC 1.16(d) (protecting client property on termination)

Court rules:

• MCR 3.602 (arbitration; one-year confirmation window)
• MCR 2.403(E), MCR 2.003 (mediator and judicial disqualification)

See also

• Mich Ethics Op. R-19: charging a client for copies of the file
• Mich Ethics Op. RI-110: hearing officer maintaining a private practice
• ABA Formal Op. 02-425: arbitration of fee disputes and malpractice claims

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1058&Type=6

Original opinion text

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

RI-188

February 2, 1994

SYLLABUS

The Michigan Rules of Professional Conduct are silent, and therefore impose no obligation, on the subject of whether a lawyer who functions as a neutral arbitrator or mediator must retain records relating to the arbitration or mediation for any specific period of time or notify the parties to such proceedings prior to the time the lawyer disposes of or destroys those records.

References: MRPC 1.12(d), 1.15(a), 1.16(d).

TEXT

A lawyer reports having been appointed to mediate or arbitrate civil matters on a frequent basis, resulting in amassing more than 300 files in which the arbitration or mediation proceedings have been concluded. The lawyer now wishes to destroy those files, asserting that, in the lawyer's role as mediator or arbitrator, there were no attorney-client relationships, the lawyer having functioned as a neutral. The lawyer wishes to destroy the files within one year after conclusion of the arbitration or mediation assignment, and wonders whether ethics rules impose any retention requirement.

MRPC 1.15(a) states:

"A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. All funds of the client paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in an interest-bearing account in one or more identifiable banks, savings and loan associations, or credit unions maintained in the state in which the law office is situated, and no funds belonging to the lawyer or the law firm shall be deposited therein except as provided in this rule. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation."

An arbitrator selected as a partisan of a party in a multi-member arbitration panel might be deemed to be involved in a "representation," in light of MRPC 1.12(d), a question on which no present opinion is expressed because it is not necessary to the question presented on these facts.

MRPC 1.12(d) clarifies that, generally, a neutral arbitrator is not involved in a "representation," due to the absence of a lawyer-client relationship, which of course would be inconsistent with any effort to function as a neutral. Compare MRPC 1.2(a) with MRPC 6.5(b). The neutral arbitrator must be exactly that, in light of the oath requirement of MCR 3.602(1), and by virtue of the fact that the arbitrator's award could be vacated if an arbitrator, appointed as a neutral, based a decision on partiality.

MRPC 1.16(d) similarly protects the interests of a client in papers and property held by a lawyer "upon termination of representation." Again, arbitrators who function as neutrals are not involved in a "representation," whether they are lawyers or not.

It must be concluded that the Michigan Rules of Professional Conduct are silent upon the subject, and do not impose any requirements on a lawyer functioning as a neutral arbitrator or mediator with respect to retention of documentation. It should, however, be noted that MCR 3.602(I) allows an arbitration award to be confirmed if a judicial proceeding to do so was instituted within one year after the award was rendered. Hence, it would seem clearly advisable for the inquiring lawyer to retain the files for a minimum of one year, and to dispose of such files after one year only if it is first ascertained that no judicial proceeding in relation has yet been instituted. It is also conceivable that a court called upon to confirm an arbitration award has equitable powers which could affect the question presented, a point of law outside the competence or bailiwick of this Committee.

For the purpose of this discussion, no distinction has been drawn between arbitrators and mediators. MCR 2.403(E) would disqualify as a mediator, in mediation under that rule, any lawyer who, if a judicial officer, would be disqualified by MCR 2.003, which latter rule disqualifies a judge presiding in a case in which the judge was lawyer for a party, or a member of a law firm representing a party within the preceding two years, or a partner of a party, or was otherwise consulted or employed as a lawyer in the matter in controversy. That would seem to reflect a general characteristic mediators and arbitrators share in common, neutrality, which would be inconsistent with the lawyer-client "representation" addressed in the record retention provisions of the Michigan Rules of Professional Conduct. Accordingly, any record retention requirements are external to the Michigan Rules of Professional Conduct, precluding further discussion consistent with this Committee's limited function.