How long must a lawyer keep closed client files, and when can the lawyer destroy them?

Plain-English summary

An attorney warehousing files from closed and settled cases (mostly negligence and malpractice claims) asked what ethical considerations governed retaining and disposing of those files. The committee began by noting that retention is sometimes required by statute or court rule, citing 22 NYCRR 603.15 (1st Dep't) and 691.21 (2d Dep't), but treated the applicability of those provisions as a question of law beyond its jurisdiction.

On the ethical side, the committee framed the analysis as a balance between two factors: certain documents in a lawyer's files may belong to the client, and in some instances the lawyer may have to give the client reasonable access to the files to prevent prejudice, even to documents belonging to the lawyer. The threshold question, whether particular papers (including work product) belong to the client or the lawyer, was itself treated as a legal question, and the committee observed that other ethics committees had reached differing conclusions on work-product ownership.

For papers determined to be the client's property, the committee concluded the lawyer should contact the client before destroying them and ask whether the client wants delivery, with no hard-and-fast rule on timing and good judgment governing. As an alternative the lawyer could simply deliver the documents to the client with advice on what to preserve; where the client could not be reached, the lawyer should be guided by the foreseeable need for the documents. For papers belonging to the lawyer, or papers of uncertain ownership, the committee said whether and how long to retain was primarily a matter of good judgment, and it adopted (with one modification) the ABA's eight retention guidelines, including not discarding items that probably belong to the client, preserving information that may be needed within an unexpired limitations period, preserving trust-fund records indefinitely, and protecting confidentiality when disposing of a file.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Client property and file-handling duties are now addressed by Rule 1.15 and Rule 1.16(d), and confidentiality by Rule 1.6. 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: Can a lawyer destroy a closed client's file without asking the client?

A: The committee concluded that for papers belonging to the client, the lawyer should contact the client before destroying them and ask whether the client wants delivery; for papers belonging to the lawyer, retention is a matter of good judgment.

Q: How does a lawyer decide which papers belong to the client?

A: The committee treated ownership of papers, including work product, as a legal question beyond its jurisdiction, noting that other ethics committees had split on whether work product belongs to the lawyer or the client.

Q: Is there a fixed number of years a lawyer must keep closed files?

A: The committee identified no fixed ethical retention period, saying the length of retention is a matter of discretion guided by the foreseeable need for the documents, though it noted retention may be separately required by statute or court rule.

Q: What must a lawyer do when actually destroying a file?

A: Under the ABA guidelines the committee adopted, the lawyer should screen the file first, protect the confidentiality of its contents when disposing of it, and preserve trust-fund records indefinitely.

Background and rules framework

The opinion rested on the general principle that a lawyer holds client papers and information subject to the client's ownership and access interests, drawing on prior New York opinions (N.Y. State 398, N.Y. State 460, N.Y. City 81-44, 82-15) and the ABA's file-retention guidelines (ABA Inf. Ops. 1384 and 1385) rather than a single disciplinary rule. Two Code provisions underlie specific guidelines: the duty to preserve confidences when disposing of files (Canon 4 / DR 4-101) and the duty to keep complete trust-fund records (Canon 9 / DR 9-102). These correspond to ABA Model Rule 1.15 (safekeeping client property), Model Rule 1.16(d) (surrendering papers on termination), and Model Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• New York Code Canon 4 / DR 4-101 (confidentiality on disposal), Canon 9 / DR 9-102 (trust-fund records) (applied in the opinion)
• MR 1.15 (safekeeping property); MR 1.16(d) (papers on termination); MR 1.6 (confidentiality)

Statutes and court rules:

• 22 NYCRR 603.15 (1st Dep't); 22 NYCRR 691.21 (2d Dep't), file-retention requirements (noted as legal questions beyond the committee's jurisdiction)

Other opinions cited:

• N.Y. State 398 (1975): work product belongs to the attorney
• ABA Inf. Op. 1384 (1977); ABA Inf. Op. 1385 (1977): file-retention guidelines and ownership of papers
• N.Y. City 82-15; Nassau County 81-10: contacting the client and retention periods

See also

• NYC Bar Formal Op. 2015-6: Notifying Clients When Files Are Accidentally Destroyed
• NYC Bar Formal Op. 1986-5: Lawyer as Escrow Agent

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1986-4/