Must a lawyer keep copies after returning the original file to a client?

Plain-English summary

The lawyer returned a completed litigation file to a client while retaining selected paper or electronic copies. The lawyer asked whether this satisfied file-retention duties.

The opinion says the lawyer need not keep any part of the file once the original has been returned or disposed of with client consent. Under then-current Rule 4-1.15(a), records of funds and other property must be kept for five years after representation ends. The lawyer may keep paper or electronic copies at the lawyer’s expense. Official reference notes say Rules 4-1.15 and 4-1.22 were later amended or replaced.

Currency note

The official source says this opinion applied earlier versions of Rules 4-1.15 and 4-1.22. It notes amendments and replacement provisions effective in 2013 and 2016.

In practice

The opinion separates optional file copies from mandatory records of funds and property under the former rules it applies.

Common questions

Q: Must the lawyer keep a copy of the returned file?

A: No. The opinion says no part of the file must be retained after return of the original or disposal with client consent.

Q: Which records had to be kept for five years?

A: Under the former Rule 4-1.15(a) discussed, records of funds and other property held by the lawyer.

Q: May the lawyer keep electronic copies?

A: Yes. The opinion permits paper or electronic copies at the lawyer’s expense.

Background and rules framework

The opinion applies former Rule 4-1.15(a) and (h). The official source notes changes to Rules 4-1.15 and 4-1.22 in 2013 and 2016.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.15
• Rule 4-1.22

See also

• Missouri Informal Op. 20050021: Deceased Client File

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20040052/

Original opinion text

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

Reference Note: Rule 4–1.15 was amended, effective July 1, 2013. This opinion is based on the rule in effect prior to that date. Please see the July 1, 2013 version of Rule 4–1.22.

Reference Note: Rule 4–1.15 was amended, effective July 1, 2016. This opinion is based on the rule in effect prior to that date.

Reference Note: Effective July 1, 2016, subdivision 4–1.22 of Rule 4 was repealed and a new subdivision 4–1.22 adopted in lieu thereof. This opinion is based on Rule 4 in effect prior to that date.

QUESTION: Attorney represents individual clients in litigation that frequently involves medical records. After the conclusion of a case, attorney returns “the file,” including medical records to the clients. Attorney keeps a copy of the contract of representation, settlement documents, and stipulations for dismissal filed with the court, sensitive material, written settlement offers, and negotiations. Attorney provides a final accounting and disbursement of any money received and gives the client a list of the file materials being returned. Is attorney’s practice in accordance with Rule 4–1.15? Attorney does not keep paper copies other than this, although Attorney may have some of the records in electronic form.

ANSWER: Under the Rules of Professional Conduct, including Rule 4–1.15(h), an attorney is not required to keep any portion of a file, if the “original file” has been returned to the client or disposed of with the client’s consent. However, under Rule 4–1.15(a), an attorney must keep records of funds and other property the attorney held for a period of five years after the end of the representation. Although Attorney and the client can alter the period of time Attorney will hold the file for the client, they cannot alter the minimum period of time Attorney must keep records of funds and other property under Rule 4–1.15(a). Attorney may keep paper or electronic copies of the file or portions of the file, at his own expense. Attorney may want to consult with his malpractice carrier for recommendations regarding keeping copies for the Attorney’s own records.