How long must a New Jersey lawyer keep a client's file after a matter is over, and when may the file be destroyed?

Plain-English summary

Opinion 692 addressed how long an attorney must maintain a client file after the final disposition of a matter. The Committee held that portions of the file that constitute the client's property must be either returned to the client, disposed of pursuant to a court order or an agreement with the client, or preserved and maintained for a reasonable period following the conclusion of the matter. Absent an express agreement that the file may be destroyed earlier, the Committee stated that a client may assume the file will be available up to a date seven years after it is closed, at which point it may be destroyed.

In reaching that conclusion, the Committee considered RPC 1.1 (competence), RPC 1.4 (communication), RPC 1.6 (confidentiality), RPC 1.15 (safekeeping property), and RPC 8.4 (misconduct), along with Rule 1:21-6. It observed that while RPC 1.15(a) requires complete records of account funds and other property to be kept for seven years after the event they record, neither the Rules nor the law of bailment prescribes how long the property itself must be kept. RPC 1.15(b) instead requires the attorney to promptly notify clients or third persons of property to which they are entitled and, except as permitted by law or by agreement, to promptly deliver it, which the Committee read to imply that client property may never be destroyed without the client's permission or some legal authority such as a court order.

The Committee distinguished what counts as the client's property. Items the client entrusted to the attorney, such as original documents, photographs, or things, remain the client's property, and depending on the nature of the representation, materials created or obtained by the attorney as part of the undertaking may also be the client's property. The opinion gave original wills, trusts, deeds, executed contracts, and corporate bylaws and minutes as examples of documents that constitute client property.

Currency note

This opinion was issued in 2001, before New Jersey's adoption of the 2004 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 Treat this page as historical context, not current guidance.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 did the Committee say a closed file should be kept?

A: Absent an agreement allowing earlier destruction, the opinion concluded that a client may assume the file will remain available up to seven years after the matter is closed, at which point it may be destroyed.

Q: Could the attorney destroy original documents the client provided?

A: No. The opinion stated that items that are the client's property, such as original documents, may never be destroyed without the client's permission or some legal authority such as a court order.

Q: What counts as the client's property in the file?

A: Per the opinion, items the client entrusted to the attorney (original documents, photographs, things) remain client property, and depending on the representation, materials the attorney created or obtained may also be; examples given include original wills, trusts, deeds, executed contracts, and corporate bylaws and minutes.

Background and rules framework

The opinion interpreted New Jersey RPC 1.15 (safekeeping property; Model Rule 1.15), reading RPC 1.15(a)'s seven-year record-keeping requirement together with RPC 1.15(b)'s prompt-delivery duty, and considered RPC 1.1, RPC 1.4, RPC 1.6, and RPC 8.4, along with Court Rule 1:21-6. The analysis turned on distinguishing the client's property (which cannot be destroyed without permission or legal authority) from other file materials, and on identifying a reasonable retention period for the latter.

Citations and references

Rules of Professional Conduct:

• MR 1.15 / NJ RPC 1.15(a), 1.15(b) (safekeeping property; record-keeping and prompt delivery)
• MR 1.1 / NJ RPC 1.1 (competence)
• MR 1.4 / NJ RPC 1.4 (communication)
• MR 1.6 / NJ RPC 1.6 (confidentiality of information)
• MR 8.4 / NJ RPC 8.4 (misconduct)

Court Rules:

• N.J. Court Rule 1:21-6 (recordkeeping; attorney trust and business accounts)

See also

• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• ABA Formal Op. 92-369: Disposition of a Deceased Sole Practitioner's Files

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2005/acp692-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The mirror's copy ends within the opinion's footnotes; the linked official source controls and contains the complete text.

163 N.J.L.J. 220

January 15, 2001

10 N.J.L. 154

January 22, 2001

OPINION 692

Retention of Closed Clients' Files

The Advisory Committee on Professional Ethics has been asked for advice concerning the length of time an attorney must maintain a client file following the final disposition of a matter. For the reasons discussed below, we hold that such portions of the file which constitute property of the client must be either returned to the client, disposed of pursuant to court order or agreement with the client, or preserved and maintained for a reasonable period of time following the conclusion of the matter. Absent an express agreement that the file be subject to destruction at an earlier point in time, the client may assume availability of the file up to a date seven years after it has been closed, at which time it may be destroyed. In making this determination, the Committee considered, among other authorities, RPC 1.1 (Competence); RPC 1.4 (Communication); RPC 1.6 (Confidentiality of Information); RPC 1.15 (Safekeeping Property); RPC 8.4 (Misconduct), and R. 1:21-6.

RPC 1.15(a) directs a lawyer to safeguard the property of clients or third persons, and although complete records of account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after the event that they record, neither the Rules of Professional Conduct nor the law of bailment prescribes or delimits the period of time the property itself need be maintained. Rather, RPC 1.15(b) compels the attorney to promptly notify clients or third persons of the receipt of property to which they are entitled and, except as otherwise permitted by law or by agreement with the client, promptly deliver the property to them. This requirement implies that property of the client may never be destroyed without the client's permission or some legal authority, such as a court order.

Clearly, that which the client has entrusted to the attorney, such as original documents, photographs or things, remains the property of the client. Additionally, depending upon the nature of the representation, that which has been created or obtained by the attorney as part of the undertaking and for which the client retained the services of the attorney constitutes property of the client. Original wills, trusts, deeds, executed contracts, corporate bylaws and minutes are but a few examples of documents which constitute client property.