Ezel / Ethics Opinions / WISBAR
WISBAR February 28, 2017

How long must a Wisconsin lawyer keep closed client files before destroying them?

Short answer: The opinion concludes there is no fixed retention period in the rules, but if the former client has not requested the file the lawyer should keep it at least six years after the last act that could give rise to a claim, and longer where the matter (such as estate planning, minors, or certain tax files) or client interests require. Before destroying a file, the lawyer must return important original client property and destroy the file in a way that preserves confidentiality. It withdrew Opinions E-84-5 and E-98-1.

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This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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Plain-English summary

Opinion EF-17-01 (February 28, 2017) addresses how long a lawyer must keep closed client files and what steps to take before destroying them. The committee withdraws Opinions E-84-5 and E-98-1, reaffirming much of their guidance while declining to keep one of E-98-1's safeguards. The opinion applies to physical and electronic files alike, and does not address a lawyer winding up another lawyer's practice under SCR Chapter 12.

The committee explains that the rules set no required retention time and there is "no magic number." SCR 20:1.16(d) requires a lawyer to take reasonably practicable steps to protect a client's interests on termination, which has been read to require preserving closed files long enough to protect those interests. The committee adopts a six-year floor: if the former client has not requested the file, the lawyer should keep it at least six years after the last act that could result in a claim against the lawyer. That floor aligns with SCR 20:1.15(g)(1) (six-year trust-records retention) and with the limitation period for most malpractice claims. Six years is a floor, not a ceiling: files involving minors, estate planning, and certain tax matters usually require longer retention, and the lawyer must weigh applicable statutes of limitations and the client's needs. A client may agree to a shorter period only with informed consent under SCR 20:1.0(f), and only where reasonable.

The committee adopts minimum safeguards before destruction: preserve the file long enough to protect the client's foreseeable interests (normally at least six years); do not destroy client property or important original documents such as wills or settlement agreements without consent, after adequately reviewing the file; include the firm's file-retention policy and the client's right to the file in engagement and closing letters; store and destroy files (paper or electronic) in a way that preserves confidentiality under SCR 20:1.6(d), including ensuring protected information is no longer retrievable from devices leaving the lawyer's control; and keep a record or index of destroyed files for a reasonable time. The committee specifically declines to require, in every case, that the lawyer try to reach the client by mail and wait a period before destruction, finding that requirement not mandated by the rules and potentially burdensome.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer should retain a closed client file at least six years after the last act that could give rise to a claim, and longer where the matter type or client interests require. The committee concludes the lawyer must, before destroying a file, return or preserve important original client property, destroy the file in a way that protects confidentiality, and keep an index of destroyed files; it recommends stating the firm's retention policy and the client's right to the file in engagement and closing letters.

Common questions

Q: How long must a Wisconsin lawyer keep a closed client file?

A: At least six years in most cases. The committee concludes that, if the client has not requested the file, the lawyer should keep it at least six years after the last act that could give rise to a claim, and longer where the matter or client interests require.

Q: Are some files kept longer than six years?

A: Yes. The committee concludes that files involving minors, estate planning, and certain tax matters usually require longer retention, and the lawyer must consider applicable statutes of limitations and client needs.

Q: What must the lawyer do before destroying a closed file?

A: Protect property and confidentiality. The committee concludes the lawyer must return or preserve important original client property, review the file, destroy it in a way that preserves confidentiality (paper or electronic), and keep an index of destroyed files.

Q: Must the lawyer notify the client before destroying the file?

A: Not in every case. The committee declines to require, as a rule, mailing the client and waiting before destruction, but recommends stating the retention policy and the client's right to the file in engagement and closing letters.

Background and rules framework

The opinion interprets SCR 20:1.16(d) / Model Rule 1.16 (protecting a client's interests on termination), SCR 20:1.15(g)(1) / Model Rule 1.15 (six-year retention of trust-account records), SCR 20:1.6(d) / Model Rule 1.6 (safeguarding confidential information), and the informed-consent standard in SCR 20:1.0(f). It also references Wisconsin statutes on the limitation period for malpractice (Wis. Stat. 893.52), the duty to file a will (Wis. Stat. 856.05, 853.09), and the ten-year limit for OLR action (SCR 21.18).

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.16(d) / Model Rule 1.16 (steps to protect a client on termination)
  • Wis. SCR 20:1.15(g)(1) / Model Rule 1.15 (six-year retention of trust records)
  • Wis. SCR 20:1.6(d) / Model Rule 1.6 (safeguarding confidentiality)
  • Wis. SCR 20:1.0(f) (informed consent)

Statutes:

  • Wis. Stat. 893.52 (limitation of actions); Wis. Stat. 856.05, 853.09 (custody and filing of wills); SCR 21.18 (time limit for OLR action)

Cases:

  • Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983), date of injury commences the malpractice limitation period

Other opinions cited:

  • ABA Informal Op. 1384 (1977): former clients' reasonable expectations about file retention
  • Tennessee Bd. of Prof'l Responsibility Op. 2015-F-160; Kansas Bar Op. 15-01: retention varies by matter type
  • Wisconsin Ethics Opinions E-84-5 and E-98-1 (withdrawn by this opinion)

See also

Source

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