How long does the Tennessee Board recommend that a lawyer keep client files after a representation ends?

Plain-English summary

This amended opinion clarifies the file-retention guidance the Board first gave in Formal Ethics Opinion 2015-F-160. It recommends that a lawyer retain client files for five years after termination of representation, framed expressly as a guideline rather than a fixed rule, and one that may be altered by client agreement or by the type of representation and the contents of the file. The opinion grounds the five-year figure in RPC 1.15(b), which requires complete records of funds belonging to clients or third persons and other property to be kept for five years after termination, and in Tennessee Supreme Court Rule 9, Section 35.1(a)(2), which requires keeping trust-account and related records for at least five years after final disposition of the underlying matter.

The opinion sets out three guidelines: a five-year retention recommendation that may be altered by client agreement or the type and contents of the file; that a client may consent to a shorter retention period, so the better practice is to address retention up front or contact clients about their wishes; and that, absent client authority to dispose of files, the lawyer should individually review files and ensure that original documents with economic, legal, or evidentiary value are not destroyed. The opinion modifies 2015-F-160 to this effect and states that all other provisions of 2015-F-160 remain in effect.

In practice

Under this amendment, the Board's recommendation is a five-year retention guideline for client files, measured from termination of the representation, that may be shortened by client agreement or lengthened by the type or contents of the file. The opinion holds that a client may consent to a shorter period, so the opinion identifies addressing retention at the outset or contacting clients about their wishes as the better practice, and that, absent client authority, the lawyer should review files individually so that original documents of economic, legal, or evidentiary value are not destroyed. This amendment supplements 2015-F-160, whose other provisions on file ownership, scope, and disposition on retirement remain in effect.

Common questions

Q: How long does the Board recommend keeping client files?

A: Five years after termination of representation, stated as a guideline that may be altered by client agreement or the type and contents of the file.

Q: Can a client agree to a shorter retention period?

A: Yes. The opinion states a client may consent to the attorney retaining a file for less than five years, and that obtaining authority to dispose of a file, ideally at the outset, is the better practice.

Q: What should a lawyer do before destroying files without client authority?

A: The opinion says the lawyer should individually review the files and be satisfied that original documents with economic, legal, or evidentiary value are not destroyed.

Q: Does this opinion replace 2015-F-160?

A: No. It modifies 2015-F-160 on the retention guidance and states that all other provisions of 2015-F-160 remain in effect.

Background and rules framework

The opinion interprets Tennessee RPC 1.15(b) (Model Rule 1.15) on safekeeping property, which requires keeping complete records of client and third-person funds and other property for five years after termination, together with Tennessee Supreme Court Rule 9, Section 35.1(a)(2), which requires preserving trust-account records for at least five years after final disposition of the underlying matter. It uses these to support the recommended five-year file-retention guideline.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 / Tennessee RPC 1.15(b) (safekeeping property; five-year records retention)

Other authorities:

• Tennessee Supreme Court Rule 9, Section 35.1(a)(2) (trust-account record retention)

See also

• Tennessee Op. 2015-F-160: Client Files, Retention, Ownership, and Retirement
• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• Alabama Op. 2010-02: Retention, Storage, Ownership, and Destruction of Client Files

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2015-f-160-a-client-files

Original opinion text

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

2015-F-160(a) - Client Files

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 2015-F-160(a)

The Board of Professional Responsibility issues this amended Formal Ethics Opinion to clarify a lawyer’s responsibility with regard to client files.

OPINION

The Board of Professional Responsibility recommends a lawyer retain client files for five (5) years after termination of representation; however, this is merely a guideline and may be altered by client agreement or the type of representation and contents of the file.

DISCUSSION

Tennessee Rule of Professional Conduct 1.15(b) provides:

Funds belonging to clients or third persons shall be deposited in a separate account maintained in an FDIC member depository institution having a deposit-accepting office located in the state where the lawyer's office is situated (or elsewhere with the consent of the client or third person) and which participates in the required overdraft notification program as required by Supreme Court Rule 9, Section 35.1. A lawyer may deposit the lawyer's own funds in such an account for the sole purpose of paying financial institution service charges or fees on that account, but only in an amount reasonably necessary for that purpose. Other property shall be identified as such and appropriately safeguarded. Complete records of such funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

RPC 1.15(b) requires complete records of funds belonging to clients or third persons or other property be kept five (5) years after termination of representation.

Similarly, Tennessee Supreme Court Rule 9, Section 35.1(a)(2) provides:

Every attorney engaged in the practice of law in Tennessee shall maintain and preserve for a period of at least five years, after final disposition of the underlying matter, the records of the accounts, including checkbooks, canceled checks, check stubs, vouchers, ledgers, journals, closing statements, accounting or other statements of disbursements rendered to clients or other parties with regard to trust funds or similar equivalent records clearly and expressly reflecting the date, amount, source and explanation for all receipts, withdrawals, deliveries and disbursements of the funds or other property of a client. The five year period for preserving records created herein is only intended for the application of this rule and does not alter, change or amend any other requirements for record-keeping as may be required by other laws, statutes or regulations.

These rules support the Board’s recommendation that a lawyer retain client files for five years after termination of representation.

CONCLUSION

Based on the above rules, the Board of Professional Responsibility recommends the following guidelines:

1. The Board of Professional Responsibility recommends a lawyer retain client files for five (5) years after termination of representation; however, this guideline may be altered by client agreement and/or the type of representation and contents of the file.

2. A client may consent to an attorney retaining a file for less than five years. Authority to dispose of a file should be obtained from a client whenever possible, so the better practice would be to address file retention initially or contact all clients and determine their wishes.

3. Absent client authority to dispose of files, an attorney should individually review files and be satisfied that original documents that have economic, legal, or evidentiary value are not destroyed.

The Board of Professional Responsibility hereby modifies Formal Ethics Opinion 2015-F-160 as reflected above. All other provisions of Formal Ethics Opinion 2015-F-160 remain in effect.

This 11th day of March, 2016

ETHICS COMMITTEE

Joe G. Riley

Michael U. King

Odell Horton, Jr.

APPROVED AND ADOPTED BY THE BOARD