Can a lawyer destroy the old client files of a deceased attorney, and what notice and confidentiality steps are required first?

Plain-English summary

An attorney whose father, also a lawyer, had died more than ten years earlier (and with whom he had not practiced) asked whether he could destroy the father's former clients' files and what notice procedures he must follow.

The opinion notes the Mississippi Rules of Professional Conduct are silent on when a client file may be destroyed, and adopts the considerations of ABA Informal Opinion 1384. That opinion explains a lawyer has no general duty to keep all files permanently, but should not prematurely or carelessly destroy valuable or useful client information; it lists factors such as not discarding items belonging to the client, items still needed within an unexpired limitations period, or information the client may need and cannot otherwise get, and directs preserving trust-fund records for seven years under Rule 1.15, screening files before disposal, protecting confidentiality, and keeping an index of destroyed files.

Applying Rule 1.6, the opinion concludes that once the lawyer assumes custody or control of the files he must ensure their confidentiality as if they were his own clients', but that this does not give him carte blanche to review them. The lawyer should first notify each client of the proposed destruction and proceed consistently with Informal Opinion 1384; where he must open a file to find the client's identity, address, or the nature of the representation, he must limit his search to what is essential to give notice. Where a client cannot be contacted, he must examine the file and remove anything of future value to the client or the client's estate, such as a will where it is unknown whether the client has died or the will has been probated.

In practice

Under this opinion, destroying a deceased attorney's client files is permitted but conditioned on notice and confidentiality. The lawyer holding the files must protect their confidentiality under Rule 1.6 as if the clients were his own, notify each client before destroying a file, and confine any review of a file to what is needed to provide that notice. For clients who cannot be reached, the opinion directs removing and preserving items of continuing value (it gives an unprobated will as the example) rather than destroying them, and points to the seven-year trust-record retention of Rule 1.15.

Common questions

Q: Can a lawyer destroy old client files inherited from a deceased attorney?

A: Per this opinion, yes, after notifying each affected client and following the screening and confidentiality considerations of ABA Informal Opinion 1384.

Q: Can the lawyer read through the inherited files freely?

A: No. The opinion concludes that assuming custody does not give carte blanche to review; any review must be limited to what is essential to identify and notify the client.

Q: What if a client cannot be located before destruction?

A: The opinion directs the lawyer to examine the file and remove items of future value to the client or the client's estate, giving an unprobated will as an example.

Q: Are there records that must be kept regardless?

A: The opinion incorporates the ABA guidance to preserve trust-fund receipt and disbursement records for seven years as provided in Rule 1.15.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.6 (confidentiality of information, the analog of Model Rule 1.6) to the custody of a deceased lawyer's files, and references Rule 1.15 (safekeeping property, Model Rule 1.15) for the seven-year retention of trust-fund records. Because the Mississippi rules do not address file destruction directly, it adopts the framework of ABA Informal Opinion 1384.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality of information, applied to files in the lawyer's custody.
• Model Rule 1.15 / Mississippi Rule 1.15: safekeeping property; seven-year retention of trust-fund records.

Other opinions cited:

• ABA Informal Opinion 1384 (Mar. 14, 1977): considerations governing a lawyer's disposition and destruction of client files.

See also

• MS Bar Ethics Op. 114: Client Files of a Deceased Attorney
• MS Bar Ethics Op. 257: Handling a Deceased Attorney's Client Files
• MS Bar Ethics Op. 254: How Long to Retain Client Files

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/98/
• Original PDF: https://www.msbar.org/media/1103/et_op_98-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 98

OF THE MISSISSIPPI BAR

RENDERED October 05, 1984

AMENDED April 06, 2013

CLIENT FILES - Attorney who proposes to destroy old files of deceased attorney must inform the affected clients and take whatever steps are necessary to protect the confidences of these clients.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts.

The requester's father was a practicing attorney who died over ten years ago. The requester, an attorney, did not practice law with his father.

Two questions are raised: (1) may the requester destroy the files of his father's former clients, and (2) if so, what procedures relative to notice to the deceased attorney's former clients must be followed.

The Mississippi Rules of Professional Conduct (MRPC) are silent as to the circumstances under which the file of a client may be destroyed. In Informal Opinion 1384 of the American Bar Association, dated March 14, 1977, the committee was responding to a request for advise to a lawyer's professional responsibility with respect to disposition of his client's files. The opinion states, in part:

A lawyer does not have a general duty to preserve all of his files permanently. Mounting and substantial storage costs can affect the cost of legal services, and the public interest is not served by unnecessary and avoidable additions to the cost of legal services. But clients (and former clients) reasonably expect from their lawyers that valuable and useful information in the lawyer's files, and not otherwise readily available to the clients, will not be prematurely and carelessly destroyed to the clients' detriment.

We cannot say that there is a specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files. Good common sense should provide answers to most questions that arise. With the foregoing limitations in mind, we suggest the following considerations:

Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or in behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records).

A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client's position in a matter for which the applicable statutory limitations period has not expired.

A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.

In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.

A lawyer should take special care to preserve accurate and complete records of the lawyer's receipt and disbursement of trust funds for seven years as provided in Rule 1.15, MRPC.

In disposing of a file, a lawyer should protect the confidentiality of the contents.

A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.

A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.

Rule 1.6, MRPC, provides that an attorney may not disclose the confidences or secrets of a client except in specified instances that are not relevant here. Despite the fact that the clients involved were never your clients, it is our opinion that once you assume custody or control over the files you must ensure confidentiality as if they were your clients. However, even though you have this responsibility, you do not have a carte blanche to review the files yourself.

It is our opinion that you should first notify each client that you propose to destroy his or her file and then proceed in a manner consistent with Informal Opinion no. 1384. In some instances, it will be necessary for you to go into the file itself to determine the identity or address of the client, or the nature of the representation. In those cases, you may not review this file generally, but must limit your search to the items essential to your providing the client with notice.

Finally, there will be instances in which you are unable to contact the client. In those situations you must examine the contents of the file and remove therefrom any documents or other things that may be of value to the client or the client's estate in the future. An example of such an item would be a will in a situation where you do not know whether the client is dead or if his or her will has been probated.