When can a lawyer destroy or dispose of a client's closed files?

Plain-English summary

The committee was asked under what circumstances a lawyer may properly dispose of closed files relating to a client. It began by observing that the ethics of the profession do not impose the unreasonable burden of maintaining every file and record forever, and that the Code is largely silent on the subject, so the question turns mostly on common sense and broader principles.

The committee set out a sequence of limits. Where the law imposes a duty on the lawyer to preserve certain records, disposing of them before the legally mandated time would be unethical (EC 1-5, DR 1-102(A)(5)), citing Appellate Division rules requiring preservation of certain records relating to the recovery of client funds. Where the law imposes a preservation duty on the client and the records are in the lawyer's custody, the lawyer may not dispose of them during that period (EC 7-1). Even after the mandated period, the lawyer may still be bound to keep records the client foreseeably will need, though the legal retention period often supplies a reasonable benchmark for assessing future need; records may be delivered to the client at any time, with care taken to advise the client to preserve them (EC 7-8; cf. EC 7-11, EC 7-12 on incapacitated clients).

For records the law does not require be kept, the committee said the retention period may be set by the client's instructions or, absent instructions, by foreseeable need (N.Y. County 624 (1974)). Where the client is deceased or incapacitated, the lawyer may deliver the closed files to the client's legal representative. Files that contain nothing the client or estate foreseeably will need may be destroyed after a reasonable period, once the lawyer has requested disposition instructions and received none. Even files that must be preserved may sometimes have their originals destroyed if suitable copies are made and the legal effect or evidentiary value is not impaired. On winding up a practice, a lawyer may have closed files delivered to another lawyer, who holds them only as custodian.

Throughout, the committee stressed the continuing duty to preserve the client's confidences and secrets under DR 4-101 and EC 4-6, including providing for their protection when the practice ends through death, disability, or retirement. It concluded that whether and how long files must be kept depends on the applicable law, the client's legitimate interests and instructions, and the lawyer's sound judgment, and that clients should be consulted and encouraged to preserve their own files; lawyers are advisers and advocates, not warehousemen.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (safekeeping of client property and records is now governed by Rule 1.15, return of files on termination by Rule 1.16(e), 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 ever destroy a client's old files?

A: Under this opinion, yes. The committee held files with no foreseeable client need may be destroyed after a reasonable period, once any legal retention period has run and the lawyer has sought the client's disposition instructions.

Q: What records can a lawyer never destroy early?

A: The committee held a lawyer may not destroy records the law requires the lawyer or the client to preserve during the mandated period, citing the Appellate Division rules on records relating to recovery of client funds.

Q: Can originals be destroyed if copies are kept?

A: The committee said even records that must be preserved may sometimes have their originals destroyed if suitable copies are made and the legal effect or evidentiary value is not impaired (citing N.Y. County 624).

Q: Does the duty of confidentiality survive disposing of the files?

A: Yes. The committee held the lawyer must preserve the client's confidences and secrets throughout, including providing for their protection when the practice ends (DR 4-101, EC 4-6).

Background and rules framework

The opinion applies the Code's confidentiality and diligence provisions, EC 1-5 and DR 1-102(A)(5) (obeying the law), EC 7-1, EC 7-8, EC 7-11, EC 7-12 (the client's interests and instructions), and DR 4-101 with EC 4-6 (preserving confidences after the representation ends). The current Model Rule analogues are Rule 1.15 (safekeeping property and records), Rule 1.16(e) (surrendering papers on termination), and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 1.15 (safekeeping property)
• MR 1.16 (declining or terminating representation; client papers)
• MR 1.6 (confidentiality of information)
• NY EC 1-5, EC 4-6, EC 7-1, EC 7-8, EC 7-11, EC 7-12; DR 1-102(A)(5), DR 4-101

Other authorities cited:

• 22 NYCRR 603.15, 691.12(b), 1022.7(a): Appellate Division rules on preserving records relating to recovery of client funds
• N.Y. County 624 (1974): retention by foreseeable need; microfilming originals
• N.Y. City 803 (1955): delivering closed files to a custodian lawyer on termination of practice

See also

• NY State Bar Op. 1192: Retention and disposition of closed client files
• NY State Bar Op. 1164: Destroying client files on request and conditions
• NY State Bar Op. 1077: Scanning and destroying original retainer agreements

Source

• Landing page: https://nysba.org/opinion-460/