Could closing lawyers turn old client files over to a successor lawyer without client consent?

Plain-English summary

Two lawyers closing their office held closed client files dating to 1981 and asked whether they could give them to another lawyer. The committee said neither the state code nor the conduct rules directly addressed that transfer. It cited Rule 1.16(e)'s duty, on termination, to take reasonably practicable steps to protect a client's interests and surrender papers and property to which the client is entitled.

Drawing on ABA Informal Opinion 1384, the committee recommended preserving client-owned originals and useful information, reviewing files before disposal, protecting confidentiality, and keeping a record of disposed files. It cited a Michigan opinion for reasonable efforts to locate clients, including regular and certified mail to their last known addresses.

On the transfer question, the committee said the files apparently could not be given to successor counsel without the clients' consent. It also cited a New York opinion on offering client-owned documents back, reviewing unclaimed files, and retaining what legal requirements or client rights required. Its conclusion expressly recommended those cited guidelines for the firm's closed files.

Currency note

This opinion was issued in 1992, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the lawyers simply deliver closed files to another attorney?

A: The committee said that appeared impermissible without client consent to successor counsel.

Q: Did the opinion set one retention period for every file?

A: No. It cited ABA Informal Opinion 1384 for file-specific discretion based on contents and expected future relevance.

Q: How did the opinion address clients who could not be located?

A: It cited a Michigan opinion for notice by regular and certified mail to the last known address, and referenced an earlier North Dakota informal opinion that suggested considering public notice when personal notification failed.

Background and rules framework

The committee applied Rule 1.16(e) to office closure and drew practical file-disposition guidance from several expressly cited ethics opinions. It did not announce a single destruction deadline.

Citations and references

Rules of Professional Conduct:

• North Dakota Rule 1.16(e), protecting client interests and surrendering property at termination.

Other opinions cited:

• ABA Informal Opinion 1384, closed-file disposition considerations.
• State Bar of Michigan Formal Opinion R-12, locating clients.
• Michigan Bar Association Opinion RI-100, consent to successor counsel.
• New York State Opinion 623, client-owned documents and unclaimed files.
• North Dakota Ethics Committee informal opinion dated June 27, 1990, notice to former clients.

See also

• ND Ethics Op. 1990-06: client files and notice
• ND Ethics Op. 08-05: returning a file

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/92-11.pdf

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.