How should a New York lawyer dispose of closed client files, and how does dissolution of the firm change those obligations?

Plain-English summary

Building on N.Y. State 460, the committee set out procedures for disposing of closed files. Documents belonging to the lawyer may, absent a legal requirement or extraordinary circumstances showing the client's clear and present need, be destroyed without notice to the client, the lawyer's only continuing obligation being to preserve confidentiality under DR 4-101(B)(1) and (D). Documents belonging to the client should first be offered to the client, preferably in a writing announcing the intent to dispose of the file; if the client does not respond within a reasonable time or cannot be reached after reasonable effort, the lawyer may dispose of the file subject to the qualifications below, using a method that protects any confidential material it contains.

The committee centered the analysis on what it called documents in need of salvaging, papers the lawyer or client is required by law to keep or that the client would foreseeably need to establish substantial personal or property rights. If the lawyer has no reason to believe such documents are present and the client does not respond, the file may be destroyed. If the lawyer has reason to believe such documents may be present, the lawyer must inspect the file first, identify them, and flag them in any communication with the client. Where the lawyer is personally required by law to maintain documents (for example, the escrow-account records DR 9-102(D) requires be kept for seven years), the lawyer cannot discharge that duty by handing the records to the client and may not deliberately or recklessly destroy them during the retention period, which would violate both law and DR 1-102(A)(5). Where the client is the one required by law to keep documents, the lawyer should inform the client and, if the client cannot recover them, may be obliged to retain them, and may charge the client for the cost of continued maintenance after notice. The committee noted that prior receipt of duplicate originals weighs against a finding of foreseeable need, and that a legally prescribed retention period may be treated presumptively as the period of foreseeable need.

On dissolution, the committee held that the duty to maintain or properly dispose of closed files does not end. Where no remaining lawyer has personal knowledge of the files, it may be necessary to examine all of them. Relying on N.Y. State 398, which holds that clients employ the firm as an entity rather than an individual member, the committee concluded that responsibility is joint and several among the former partners, consistent with the amended DR 9-102(G), which requires the former partners or members to make appropriate arrangements for records the firm was required to maintain. The committee added that the economic burden of disposition does not excuse the duty, but stressed that the opinion does not create a duty to preserve files where none exists in law; much of the timing of client consultation rests on the sound judgment of counsel.

Currency note

This opinion was issued in 1991, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 New York lawyer destroy a closed client file?

A: Yes, subject to conditions. The committee said documents belonging to the lawyer may generally be destroyed (preserving confidentiality), and client-owned documents may be disposed of after the client is offered them and fails to respond, except for documents required by law to be kept or foreseeably needed to establish substantial rights.

Q: What must the lawyer keep even after a file is closed?

A: Documents required by law to be maintained (such as the escrow-account records DR 9-102(D) requires for seven years) and documents the client would foreseeably need to establish substantial personal or property rights. Where the lawyer has reason to believe such documents are in a file, the lawyer must inspect it before destroying it.

Q: Does dissolving the firm end these duties?

A: No. The committee held that dissolution does not relieve the lawyers of the obligation to maintain or properly dispose of closed files, and that the responsibility is joint and several among the former partners, consistent with DR 9-102(G).

Q: Can the lawyer charge the client for continuing to store documents?

A: Where the documents are ones the client is required by law to keep or will need to establish substantial rights, the committee said the lawyer may charge the client for the cost of further maintaining them, provided the lawyer first gives the client notice of that intention.

Background and rules framework

The opinion interpreted DR 4-101(B)(1) and (D) (preserving client confidences and secrets, including in the disposal of files), DR 9-102(B), (D), and (G) (maintaining and, on dissolution, making appropriate arrangements for required records), and DR 1-102(A)(5) (conduct prejudicial to the administration of justice), with EC 4-4 and EC 4-6. The closest Model Rule analogues are Rule 1.6 (confidentiality), Rule 1.15 (safekeeping of property and records), and Rule 1.16(d) (returning client property and protecting client interests on termination).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.15 (safekeeping property; record retention)
• MR 1.16 (returning papers and property on termination)
• NY DR 1-102(A)(5); DR 4-101(B)(1); DR 4-101(D); DR 9-102(B); DR 9-102(D); DR 9-102(G); EC 4-4; EC 4-6

Other opinions cited:

• N.Y. State 460 (1977): the earlier opinion on when a lawyer may dispose of closed files
• N.Y. State 398 (1975): clients employ the firm as an entity, not an individual member
• N.Y. City 1986-4 (1986): good practice to discuss file retention with the client at termination
• Nassau County 40-88 (1988); Nassau County 43-89 (1989): joint responsibility and custodial duties on dissolution

See also

• NY State Bar Op. 766: Disposition of former client files
• 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. 641: Recycling ordinance and client confidentiality

Source

• Landing page: https://nysba.org/opinion-623/