How long must a Nebraska successor trustee retain a deceased lawyer's client files, and what efforts are required to locate clients before destruction?

Plain-English summary

A trustee appointed to protect clients of a deceased sole practitioner held numerous files, including original documents such as birth certificates. Many files lacked current client contact information, raising questions about retention and reasonable efforts to return property.

Opinion 88-3 had supplied no definite destruction date, relying instead on judgment about client expectations, future usefulness, confidentiality, and storage. After Nebraska adopted the Rules of Professional Conduct, Rule 1.15(a) supplied a five-year preservation period for complete records of account funds and other property after representation ends.

The Committee says Opinion 88-3 no longer controls, but its underlying considerations remain sound. The Committee says the earlier guidance on original client property, limitations periods, future relevance, and confidential disposal should still be strongly considered.

The earlier guidance recommends screening files for client property and foreseeable need. The Committee says that guidance should still be strongly considered, while concluding that client files may be destroyed after five years.

Reasonable efforts to locate a client depend on the remaining materials' value and importance. The opinion identifies internet, public-record, and social-media searches as possible measures and says valuable materials may justify a private investigator. When many clients cannot be reached, publication in a legal newspaper may be considered.

The opinion also emphasizes succession planning. A sole practitioner should arrange for a competent person to protect client matters, files, funds, loyalty, and confidentiality in the event of death or disability.

In practice

The opinion permits destruction after five years while urging consideration of earlier file-retention guidance. It says reasonable efforts to contact clients should be proportionate to the value or importance of remaining materials.

Common questions

Q: Does Opinion 88-3 still control?

A: No. The later Rules supply a five-year period, but Opinion 88-3's underlying factors remain relevant.

Q: What does the opinion conclude about destruction after five years?

A: It says client files may be destroyed after five years. It also says earlier guidance on client property, foreseeable need, and confidential disposal should still be strongly considered.

Q: What does the opinion say about screening files before destruction?

A: Earlier guidance recommends screening files for client property and continuing need. The opinion says those principles should still be strongly considered; it does not impose mandatory file-by-file screening.

Q: How much effort is required to locate a client?

A: Effort should be proportionate to the value or importance of the materials and may range from public searches to investigation or published notice.

Q: What planning does the opinion identify for sole practitioners?

A: A plan for a competent successor to protect active matters, files, funds, loyalty, and confidentiality after death or disability.

Background and rules framework

Rule 1.15 governs safeguarding and preservation of client property records. Rule 1.16 requires protection of client interests and surrender of client papers at termination. Rule 1.1 informs the competence needed for succession and file administration.

Citations and references

Nebraska Rules of Professional Conduct:

• Neb. R. Prof. C. §§ 3-501.1, 3-501.15(a), and 3-501.16(d)

Other opinions cited:

• Nebraska Ethics Advisory Opinion 88-3
• ABA Formal Opinion 92-369 (1992)
• ABA Informal Opinion 1384 (1977)
• Arizona State Bar Opinion 04-05 (2005)
• Florida Opinion 81-8M (1981)

See also

• ABA Formal Op. 92-369: Deceased sole practitioner files
• Nebraska Ethics Op. 17-01: Electronic closed client files
• Nebraska Ethics Op. 12-09: Client file retaining lien

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 12-07

Original opinion text

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

NEBRASKA ETHICS ADVISORY OPINION FOR LAWYERS No. 12-07

COMPLETE RECORDS OF ACCOUNT FUNDS AND OTHER PROPERTY SHALL BE KEPT BY THE LAWYER AND SHALL BE PRESERVED FOR A PERIOD OF FIVE (5) YEARS AFTER TERMINATION OF THE REPRESENTATION.

QUESTION PRESENTED

Are the guidelines provided in Nebraska Ethics Advisory Opinion No. 88-3 still applicable?

What guidelines are applicable to files held by a trustee appointed pursuant to Neb. Ct. R.
§ 3-328?

What reasonable efforts should be made to contact clients whose files do not obtain updated contact information?

FACTS

An attorney was appointed as a trustee pursuant to Neb. Ct. R. § 3-328 for the protection of client interests for a deceased sole practitioner. Many of the files contained original documentation, such as birth certificates. However, many of the files also did not contain updated contact information. Prior Nebraska Ethics Advisory Opinion No. 88-3 provided that a client should be asked if they wanted delivery of such documents prior to disposal with no specific time guideline. However, due to the substantial number of people that lack updated contact information, that the trustee has been unable to contact, he seeks additional guidance regarding reasonable efforts to contact such individuals and for how long that file information should be kept.

Applicable Rules of Professional Conduct § 3-501.15 (a) states that a lawyer shall hold property of clients or third person that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office situated. 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. (Emphasis added).

SECTION 3-501.16 (7)(d)

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to 2905 which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
SECTION § 3-501.1
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.

DISCUSSION

Nebraska Ethics Advisory Opinion for Lawyers No. 88-3 provided:

IT IS NOT POSSIBLE TO STATE A DEFINITE TIME AS TO WHEN CLOSED CLIENT FILES MAY BE DESTROYED. THE RETENTION OR DESTRUCTION OF CLIENT FILES IS PRIMARILY A MATTER OF GOOD JUDGMENT, WEIGHING THE CLIENTS’ INTERESTS AND EXPECTATIONS IN THE RETENTION OF FILE MATERIALS, THE REASONABLY EXPECTED FUTURE USEFULNESS OF THE FILE CONTENTS, THE CAREFUL PRESERVATION OF CONFIDENTIALITY, AND THE AVAILABILITY OF STORAGE SPACE.

Nebraska has since adopted the Rules of Professional Conduct. Therefore, the applicability of the above has been questioned as the prior opinion was decided under the Code of Professional Responsibility. The relevant ethical rule is now as follows: § 3-501.15(a) (O)ther property shall be kept by the lawyer and shall be preserved for a period of five (5) years after termination of the representation.

While previous there was not a specific time period, the above section now presents one. Also, under 3-501.16(d), (U)pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Also of note is § 3-501.1, which provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.”

While not technically a part of the question asked, avoidance of the problem in the first place is most advisable. In “When a Lawyer Dies,” June 2006, BIOFOCAL, Peter Geraghty outlines the relevant ethical opinions and obligations particularly of a sole practitioner. ABA Formal Opinion 92-369 (1992) states, “Although representation should terminate when the lawyer is no longer able to adequately represent the client, the lawyer’s fiduciary obligations of loyalty and confidentiality continue beyond the termination of the agency relationship.” The opinion further notes, “The death of a sole 2906 practitioner could have serious effects on the sole practitioner’s clients. Important client matters, such as court dates, statutes of limitations, or document filings, could be neglected until the clients discovery that their lawyer has died. As a precaution to safeguard client interests, the sole practitioner should have a plan in place that will insure insofar as is reasonably practicable that client matters will not be neglected in the event of the sole practitioner’s death.” Although sanctions on a deceased lawyer would certainly have no deterrent effect on that lawyer, it seems advisable to remind lawyers that their duty continues on even after death and to have a plan in place to take care of client interests. In this regard, Arizona State Bar Opinion 04-05 (2005) suggested that a lawyer should choose a means that is not only legally effective, but also fair to and expeditious for the clients who are entitled to funds in other matters in case of death or disability. The lawyer is ethically obligated to select someone who the lawyer reasonably believes is competent to discharge those duties upon his disability or death. Similarly, Florida Opinion 81-8M (1981) states that a lawyer anticipating termination of his practice by death should dispose of all files according to his clients’ instructions. The files of those individuals who do not respond should be individually reviewed by the lawyer and destroyed only if no important papers belonging to the client are in the files... Important documents should be indexed and placed in storage or turned over to another lawyer who assumes control of the active files. 801 ABA-BNA Lawyers’ Manual on Professional Conduct 2502. Numerous other ethical opinions stress that any lawyer reviewing client files must take steps to preserve client confidentiality and may not disclose client confidences without the client’s consent. The principles in Nebraska Ethics Advisory Opinions for Lawyers 88-3 still should still be strongly considered as well as those contained in ABA Informal Opinion 1384. Opinion No. 88-3 lists the following factors in the decision for retention or destruction of client files:

1. The file may include original documents or other property furnished by or on behalf
   of the client, the return of which might reasonably be expected by the client.
   Before destroying such documents or property, the client should be asked whether
   he wants delivery of them. Alternatively, the lawyer may simply deliver such
   documents to the client with appropriate advice regarding factors which the client
   should consider in determining which items to preserve. Where unable to contact
   the client, the lawyer should be guided by the foreseeable need for the documents
   in determining whether to destroy them.

2. An attorney must use care not to destroy or discard information that he 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 a statute of limitations has not expired.

3. An attorney must consider the reasonable expectations of the client for the
   preservation of files.

4. 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 relevance and
   materiality to matters that can be expected to arise in the future.
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   5. Disposition of client files must be made in such a manner as to protect full the
   confidentiality of the contents.
   ABA Informal Opinion 1384 (1977) put forth eight basic considerations to keep in mind when considering whether to keep or discard a client file:

5. 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).

6. 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.

7. 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.

8. In determining the length of time for retention of 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.

9. A lawyer should take special care to preserve, indefinitely, accurate and complete
   records of the lawyer’s receipt and disbursement of trust funds.

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

11. 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.

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

                          CONTACTING THE CLIENT
    

If the attorney lacks updated information, it would seem appropriate to do a Google search, a public record search, or a Facebook search. If important or valuable materials are involved, hire a private investigator, and in the case of being unable to contact numerous people, to perhaps publish notice in a legal newspaper for that purpose.
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 CONCLUSION

Ethics Advisory Opinion No. 88-3 does not still control as the rules have changed, but many of the underlying reasons and conclusions remain sound. Client files may be destroyed after five years, but efforts should be put in place to make reasonable efforts to contact the client should be proportionate with the value or importance of the file materials which remain in the lawyer’s possession after the file is closed.

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