How long must a North Carolina lawyer keep closed client files, and how can they be destroyed?

Plain-English summary

The opinion answered three inquiries from a lawyer who had run out of file storage and wanted to dispose of closed client files. It concluded that a lawyer may dispose of closed files, subject to requirements. Because the original file belongs to the client and the lawyer has a fiduciary duty to safeguard client property, the file must be stored in a secure location that maintains confidentiality, citing Rule 4, Rule 10.1, and RPC 79. With the client's consent, a closed file may be destroyed at any time. Absent consent, the opinion set a minimum retention period of six years after the representation concludes, drawn from the records-retention period for client property in Rule 10.2(b), and noted that the statute of limitations may require longer retention.

The opinion distinguished disposal before and after six years have passed. Before six years, a file may be destroyed only with the client's consent or, after notice, if the client fails to retrieve it; the lawyer must advise the client of the intent to destroy and give a reasonable opportunity to retrieve or transfer the file, retaining items belonging to the client or useful to a matter still within the statute of limitations (citing RPC 16). After six years, no notice is required, but if the file was not previously purged, the lawyer should review it and retain items belonging to the client until retrieved or until they are deemed abandoned and escheat to the state under Chapter 116B of the North Carolina General Statutes. A record of all destroyed files should be kept (RPC 16). On method, the opinion said the Rules prescribe no particular method, but destruction must preserve confidentiality under Rule 4, citing RPC 133's recycling guidance. As to files left by former law partners, the opinion concluded that because Attorney A retained possession he had a fiduciary obligation to handle them properly, and could either return them to the original lawyers or dispose of them under the same guidelines.

Currency note

This opinion was issued in 1996, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: How long must a North Carolina lawyer keep a closed client file?

A: At least six years after the representation ends, absent the client's consent to earlier destruction. The opinion drew the six-year minimum from the client-property records-retention period in Rule 10.2(b) and noted the statute of limitations may require longer.

Q: Can a file be destroyed before six years have passed?

A: Only with the client's consent or, after notice, if the client fails to retrieve it. The opinion required the lawyer to advise the client of the intent to destroy, give a reasonable chance to retrieve or transfer the file, and retain items belonging to the client or useful to a still-live matter (RPC 16).

Q: Does the method of destruction matter?

A: Yes. The opinion concluded the Rules prescribe no particular method, but destruction must preserve client confidentiality under Rule 4, citing RPC 133's standard for safely disposing of confidential waste paper.

Q: What about files a lawyer is storing for former law partners?

A: The opinion concluded that because the lawyer retained possession he had a fiduciary obligation to handle the files properly, and could either return them to the original lawyers or dispose of them under the same guidelines.

Background and rules framework

The opinion applied North Carolina's then-current Rule 4, the confidentiality provision corresponding to Model Rule 1.6, together with Rule 10.1 and Rule 10.2(b), the safekeeping-of-property provisions corresponding to Model Rule 1.15. It treated the client file as the client's property held under a fiduciary duty, and it relied on prior opinions RPC 16, RPC 79, and RPC 133 for the notice, record-keeping, and confidential-disposal mechanics.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.15 (safekeeping property; records of client property)
• North Carolina Rule 4, Rule 10.1, Rule 10.2(b)

Statutes:

• N.C. Gen. Stat. Chapter 116B (abandoned property; escheat)

Other opinions cited:

• RPC 16 (notice, retention of client items, record of destroyed files)
• RPC 79 (secure storage of client files)
• RPC 133 (confidential disposal of waste paper)

See also

• NC Ethics Op. RPC 227: release of title notes to a former client
• NC Ethics Op. RPC 234: electronic storage of the client's file
• NC Ethics Op. 2023 FEO 1: sale or closure of a practice and handling aged files

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-209/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 209 (Revised).

Inquiry #1:

Attorney A has been in practice for 20 years. Whenever he completes a matter for a client, he closes the client's file and retains it in his office. Attorney A has run out of space to store files in his office. The expense of renting storage space to store files is prohibitive. May Attorney A dispose of the closed client files?

Opinion #1:

Yes, subject to certain requirements.

The original file belongs to the client and, because of the general fiduciary duty to safeguard the property of a client, a lawyer should store a client's file in a secure location where client confidentiality can be maintained. See Rule 4 and Rule 10.1 of the Rules of Professional Conduct, and RPC 79.

With the consent of the client, a closed file may be destroyed at any time. Absent the client's consent to disposal of a file, a closed file must be retained for a minimum of six years after the conclusion of the representation. Six years is the required minimum period for retaining a closed client file because this retention period is consistent with retention period for records of client property set forth in Rule 10.2(b). Of course, the statute of limitations may require the retention of a closed file for more than six years.

If six years have not passed since a client's file became inactive, the file may only be destroyed with the consent of the client or, after notice to the client, the client fails to retrieve the file. The client should be contacted and advised that the lawyer intends to destroy the file unless the client retrieves the file or, within a reasonable period of time, directs that the file be transferred to another lawyer. See RPC 16. If the client indicates that he or she does not wish to retrieve the file, the lawyer may dispose of the file. On the other hand, if the client indicates that he or she would like to retrieve the file, the client must be given a reasonable opportunity to do so. If the client fails to retrieve the file within a reasonable period of time, the file may be destroyed. RPC 16. If the client fails to retrieve the file after notice, the lawyer should review the file and retain any items in the file that belong to the client or contain information useful in the assertion or defense of the client's position in a matter for which the statute of limitations has not expired. See RPC 16. These items should be retained until the client consents to their destruction or retention is no longer required by law or necessary to protect the client's rights.

After the passage of six years, the lawyer is not required to notify the client that the file will be destroyed. However, if not previously reviewed and purged of the client's possessions, the lawyer should review the file and retain any items that belong to the client. These items should be returned to the client or retained in a secure place until retrieved by the client or until the items are deemed abandoned and escheat to the state under Chap. 116B of the North Carolina General Statutes. The remaining records in the file may be destroyed.

A record should be maintained of all destroyed client files. RPC 16.

Inquiry #2:

Do closed client files have to be destroyed or disposed of in a particular manner?

Opinion #2:

No particular method of destroying files is prescribed by the Rules of Professional Conduct. However, if closed files are destroyed, the method chosen must preserve client confidentiality. See Rule 4. RPC 133 ruled that a law firm may recycle its waste paper if the responsible attorney can "ascertain that those persons or entities responsible for the disposal of waste paper employ procedures which effectively minimize the risk that confidential information might be disclosed." When client files are destroyed, similar precautions should be taken.

Inquiry #3:

Attorney A has in storage not only the files of his own clients but also the client files of lawyers who were formerly his law partners. What should Attorney A do with these client files?

Opinion #3:

Although the files belong to clients of lawyers other than Attorney A, because Attorney A has retained possession of these files, he has a fiduciary obligation to see that the files are properly handled. A former client is most likely to look for the attorney who previously handled his or her matter when trying to locate a legal file. Therefore, Attorney A may return these files to the original lawyers. Alternatively, Attorney A may dispose of the files in a manner that is consistent with the guidelines set forth in this opinion.