How should a lawyer handle the destruction of closed client files, and what must be retained?

Plain-English summary

Responding to an inquiry about destroying closed files, the committee noted it is cumbersome for a firm to retain all files intact indefinitely, but set out points to consider before routine destruction. It observed that court pleadings and recorded documents can usually be reconstructed from records elsewhere, that all original documents should be returned to the client, that a client should be furnished a conformed set of copies of formal documents (contracts, agreements, settlements) even if the original is unavailable, and that all client property must be returned to the client (Rule 16-115).

The committee advised segregating file contents into three categories: documents that are the client's property and of intrinsic value (such as wills and deeds), which should be retained indefinitely or deposited with the court; documents that are the client's property and would be expected returned, or that are not the client's property but may be of future use, which should be retained for a reasonable period; and all other documents, which may be destroyed. It noted that a reasonable time depends on the circumstances, and that in each case the lawyer should attempt to contact and deliver documents to the former client, examining the file to determine its nature, content, and value and to continue protecting the client's confidences. The lawyer should retain an accurate, complete record of receipts and disbursements of trust funds and an index of destroyed files.

The committee added a professional-liability concern, only indirectly related to ethics: once correspondence and interview notes are destroyed, the lawyer may be unable to respond accurately to later inquiries about what was done and why and what information was given to the client. It cautioned that discretion should be used in destroying file contents, with some files kept longer than others, noting a lawyer may have to defend the manner of preparing a will twenty years later.

Currency note

This opinion was issued in 1988, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (Rule 16-115). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). Treat this page as historical context, not current guidance.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 old closed client files?

A: The opinion concluded a lawyer may destroy closed-file contents using discretion, but only after returning client property and originals and segregating documents by category, keeping those of intrinsic value indefinitely.

Q: What must always be returned to the client before destruction?

A: The committee concluded all original documents and all client property must be returned, and the client should be given a conformed set of copies of formal documents such as contracts, agreements, and settlements (Rule 16-115).

Q: What records should the lawyer keep even after destroying files?

A: The committee advised retaining an accurate, complete record of receipts and disbursements of trust funds and an index of destroyed files.

Q: How long should files be kept?

A: The committee concluded a reasonable retention time depends on the circumstances, with some files (for example those underlying a will, which a lawyer may have to defend twenty years later) kept longer than others.

Background and rules framework

The opinion applied Rule 16-115 of the Rules of Professional Conduct (safekeeping and return of client property), framing file destruction around the duties to return property, protect confidences, and keep trust-account records. These correspond to current Model Rules 1.15 (safekeeping property), 1.16 (return of papers on termination), and 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• Rule 16-115 (safekeeping and return of client property)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1988/1988-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion 1988-1
In response to an inquiry regarding the destruction of closed files, our committee offers the following response.
It is obviously cumbersome for a firm to retain intact all files indefinitely. Before routinely destroying files, one should consider several points regarding a file.
Obviously, court pleadings and recorded documents can usually be reconstructed from records elsewhere. All original documents should be returned to the client, and a client should always be furnished with a conformed set of copies of formal documents, such as contracts, agreements, settlements, etc., even if the original is not available. All property of the client must be returned to the client. (Rules of Professional Conduct No. 16-115)
The lawyer should examine and segregate the contents of a file as to:
1. Documents that are the client's property and are of intrinsic value, such as wills and deeds, which should be retained indefinitely or deposited with the court;
2. Documents that are the client's property and which the client would expect returned or documents that are not the client's property but may be of future use which should be retained for a reasonable period; and
3. All other documents which may be destroyed.
A reasonable amount of time depends on the circumstances of the case. In each case, the lawyer should attempt to contact and deliver the documents to the former client.
The lawyer should examine the file to determine the nature, content and value to the client and to continue to protect the client's confidences.
A lawyer should retain an accurate and complete record of receipts and disbursements of trust funds and an index of destroyed files.
An additional concern would be in the area of professional liability defense, which is only indirectly related to ethical questions. Once the lawyer's correspondence and notes of interviews with clients and other attorneys are destroyed, the lawyer may be unable to respond accurately to inquiries about what was done, why, and what information was given to the client.
The lawyer should use discretion in destroying the contents of a file, and some types of files should be kept longer than others. For example, a lawyer may have to defend the manner of preparing a will 20 years after the fact.