How long must a West Virginia lawyer keep a former client's closed file, and how can the lawyer destroy it without violating the duty to safeguard client property?

Plain-English summary

The Office of Disciplinary Counsel received frequent requests from attorneys who wanted to destroy the files of former clients' concluded matters. The Lawyer Disciplinary Board issued this formal opinion to give guidance, and noted it intended to seek a rule change to clarify lawyers' obligations in this area. The opinion starts from the premise, drawn from prior opinions L.E.I. 89-02 and 92-02, that the file is the property of the client, not the attorney, because the client paid for its contents and often supplied documents within it. Destroying a concluded file is therefore destroying someone else's property.

The opinion ties the duty to Rule 1.16(d), which requires a lawyer on termination of representation to surrender papers and property to which the client is entitled. It states that obtaining explicit client consent before destroying files is best practice, for example by stating the firm's file-retention policy in the representation agreement or in a closing letter that tells the client the file will be kept only for a set period, that the client may take the file, and that it will otherwise be destroyed at the end of that period. The opinion balances that against the principle that clients are not entitled to store documents permanently at the lawyer's expense; at some point a client's consent to destruction becomes implicit. It quotes ABA Informal Opinion 1384 for the view that lawyers have no general duty to preserve all files permanently, but that clients reasonably expect valuable, not-otherwise-available information will not be prematurely and carelessly destroyed.

On timing, the opinion reads Rule 1.15(a) (which requires trust-account and other property records to be preserved for five years after termination) to support advising that closed files be returned to clients or kept for a minimum of five years after the representation ends. Holding a file for five years with no request from the client can be deemed implicit consent to destroy it. Some files must be kept much longer depending on the nature of the case, for example files for the claims of minor children (until majority plus any limitations period) and certain tax matters. The opinion observes that many lawyers retain closed files for ten years, the usual contract statute of limitations, and states the opinion does not change any limitations period or malpractice standard of care.

On the mechanics, the opinion directs that before destruction the lawyer or a capable employee look through each file to remove and properly handle original wills, trust documents, deeds, and other non-replaceable documents, ideally at the close of the matter while it is fresh. Because Rule 1.6 protects confidentiality even after the representation ends and reaches more broadly than the attorney-client privilege or work-product doctrine, any destruction must protect that confidentiality; the Board recommends burning, shredding, or a similar method of complete destruction, or use of a bonded document-destruction company.

In practice

Under this opinion, and under the West Virginia rules as they stood in 2002, a lawyer who disposes of a closed client file is treated as handling the client's property. The opinion holds that the lawyer should either return the file or retain it for a minimum of five years after the representation ends, drawing that floor from Rule 1.15(a), and longer where the nature of the matter (minor's claims, certain tax issues) requires. It frames retaining a file for five years without a client request as a basis for implied consent to destroy.

The opinion also holds two limits on the manner of disposal. Originals and other irreplaceable documents must be screened out and properly handled before the file is destroyed, and the destruction itself must protect client confidences under Rule 1.6, which the opinion describes as protected even after the representation ends. The opinion characterizes obtaining explicit client consent through a retention policy in the engagement agreement or closing letter as best practice. Note that West Virginia adopted comprehensive amendments to its Rules of Professional Conduct effective January 1, 2015; verify the current text of Rules 1.15, 1.16, and 1.6 before relying on the specific provisions described here.

Common questions

Q: Who owns a closed client file in West Virginia?

A: The client. The opinion follows L.E.I. 89-02 and 92-02 in treating the file as the property of the client, not the attorney, because the client paid for its creation and often provided documents in it.

Q: How long should a lawyer keep a closed file before destroying it?

A: The opinion advises returning the file to the client or keeping it for a minimum of five years after the representation ends, mirroring the five-year records-retention period in Rule 1.15(a). Some files (for example, a minor child's claim or certain tax matters) must be kept longer based on the nature of the case.

Q: Can a lawyer destroy a file without first asking the client?

A: The opinion says explicit consent (through a retention policy in the engagement agreement or a closing letter) is best practice, but that after enough time has passed, holding a file with no client request can be deemed implicit consent to destroy it.

Q: How should the file actually be destroyed?

A: First, screen the file for original wills, trust documents, deeds, and other irreplaceable documents and handle them separately. Then destroy the remainder in a way that protects confidentiality under Rule 1.6, such as shredding, burning, or using a bonded document-destruction company.

Background and rules framework

The opinion interprets the West Virginia Rules of Professional Conduct as they existed in 2002. The central provisions are Rule 1.16(d) (Model Rule 1.16), requiring a lawyer on termination to surrender papers and property to which the client is entitled; Rule 1.15(a) (Model Rule 1.15), requiring complete records of client property to be preserved for five years after termination of the representation, which the opinion uses as the analog for a minimum file-retention period; and Rule 1.6 (Model Rule 1.6), the confidentiality rule, which the opinion notes protects information relating to the representation more broadly than the attorney-client privilege or work-product doctrine and continues after the representation ends. The opinion builds on prior West Virginia opinions L.E.I. 89-02 and L.E.I. 92-02 on file ownership and what must be turned over to a client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / WV RPC 1.16(d) (on termination, surrender of papers and property to which the client is entitled)
• Model Rule 1.15 / WV RPC 1.15(a) (safekeeping property; five-year preservation of records after termination)
• Model Rule 1.6 / WV RPC 1.6 (confidentiality of information relating to the representation, continuing after the representation ends)

Cases:

• No cases cited.

Other opinions cited:

• ABA Informal Opinion 1384, "Disposition of a Lawyer's Closed or Dormant Files Relating to Representation of or Services to Clients" (March 14, 1977): no general duty to preserve all files permanently, but clients reasonably expect valuable information will not be prematurely destroyed
• West Virginia L.E.I. 89-02 and L.E.I. 92-02: file ownership and what a lawyer must provide a client who obtains the file

See also

• WV LEO 2012-01: Electronic and cloud storage of client files
• No other sibling opinions yet indexed.

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f665549c65ace54.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 2002-01
RETENTION AND DESTRUCTION OF CLOSED CLIENT FILES

The Office of Disciplinary Counsel frequently receives requests for advice from attorneys seeking to destroy files of former clients' concluded legal matters. The Lawyer Disciplinary Board issues this formal opinion to provide guidance on this issue. The Lawyer Disciplinary Board also intends to seek a change to the Rules of Professional Conduct to clarify lawyers' obligations in this area.

How Long to Maintain Client Property

In prior formal opinions of this Board, it has been impliedly recognized that files are the property of the client, not of the attorney. L.E.I. 89-02 and 92-02. The client paid for the contents of the file to be created by paying attorneys fees and other expenses, and thus owns the file. Also, some documents, photographs, records and other such property in the file were likely provided by the client him or herself. Therefore, when a lawyer destroys a file from a concluded representation, that lawyer is destroying someone else's property.

Rule 1.16(d) of the West Virginia Rules of Professional Conduct provides:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

(Emphasis supplied.)

The best practice is for lawyers to obtain explicit client consent prior to destroying files. One easy way to obtain this consent is to include language in every representation agreement or retainer letter which sets forth the firm's file retention policy. When the client signs a representation agreement, he is agreeing to that policy. Furthermore, many lawyers follow the recommended practice of sending final letters to clients at the conclusion of every representation. Among other things, this letter should reiterate the firm's file retention policy. The language to be included in these documents should clearly establish that: files will be maintained only for the specified period of time; the client may have the file if he/she wishes; and that if the file is not obtained by the client, it will be destroyed at the expiration of this time period.

However, it must also be recognized that clients are not entitled to store their documents on a permanent basis at their lawyer's expense. At some point in time, even absent explicit consent to destroy, it is no longer reasonable for a client to expect that the lawyer will still maintain the client's property. At that point in time, the client's consent to destroy the file is implicit. ABA Informal Opinion 1384, "Disposition of a Lawyer's Closed or dormant Files Relating to Representation of or Services to Clients" [March 14, 1977], advises that lawyers do not have a general duty to preserve all files permanently. However, clients and former clients "reasonably expect from their lawyers that valuable and useful information in the lawyers' files, and not otherwise readily available to the clients, will be not be prematurely and carelessly destroyed, to the clients' detriment." Id.[1]

Determining the point in time when implicit consent exists can be difficult to ascertain. Rule 1.15(a) of the West Virginia Rules of Professional Conduct, "Safekeeping property", provides a mandatory five year time period for maintaining certain records including trust account records, but it is not clear whether this rule also applies to portions of a client's file such as pleadings, correspondence, discovery, etc. Rule 1.15(a) provides:

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account designated as a "client's trust account" in an institution whose accounts are federally insured and maintained in the state where the lawyer's office is situated, or in a separate account elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after the termination of the representation.

(Emphasis supplied.) Importantly, the five year time period begins upon the termination of the representation.

To be consistent with Rule 1.15(a), the Board advises that closed files either be provided to the individual clients or be maintained for a minimum of five years after the termination of the representation. For many files, holding the file for five years with no request for it by the client can be deemed implicit consent to destroy the file. However, some files must be maintained well beyond five years. How long to maintain an individual file should be determined by the nature of the case and the information included within the file. For example, files pertaining to the claims of minor children ought to be maintained until the child is beyond the age of majority and any statute of limitations has expired. Files of certain tax matters should be maintained as long as the client is exposed to further liability for those issues. There are undoubtedly other examples.

Each lawyer should also check with his/her malpractice insurance carrier to determine the minimum time period it recommends. A lawyer may be exposed to a malpractice claim beyond the five years. To protect themselves, many lawyers wisely retain closed files for a period of ten years after the representation has ended, as ten years is the usual statute of limitations for contract cases. This legal ethics opinion in no way changes any applicable statute of limitations or standard of care for legal malpractice cases.

What To Provide The Client Who Obtains His/Her File

Formal opinion L.E.I. 92-02 sets forth what must be provided to a client when the client receives the file:

. . . all material provided by the client; all correspondence; all pleadings, motions, other material filed and discovery, including depositions; all documents which have evidentiary value and are discoverable under the Rules of Civil Procedure, such as depositions and business records. The above-described material must be released regardless of any outstanding fees or costs.

Should the client clearly owe attorney fees or expenses, L.E.I. 92-02 permits a lawyer to only withhold work product as defined by the civil discovery rules. If the client does not owe money, then the lawyer must also provide the work product.

With some obvious exceptions set forth in L.E.I. 89-02, the original file goes to the client, as it is the client's property. Of course, the lawyer may retain a copy of the file for the lawyer's use. If a lawyer makes a copy of the file, that copy is deemed to be for the lawyer's benefit.[2]

The Mechanics of Disposing of Files

Before destroying files, the lawyer or some capable firm employee must look through every file to ensure that no original wills, trust documents, deeds, or other non-replaceable documents are forever lost. These documents must be removed and properly handled before disposing of the file. The Board recommends that the most efficient way to accomplish this would be to look through the file at or near the conclusion of the representation; the matter is fresh in the lawyer's memory, and this avoids the necessity of searching dozens or hundreds of files at once.[3]

Additionally, Rule 1.6 of the Rules of Professional Conduct mandates that a lawyer maintain client confidentiality. Rule 1.6 broadly defines client confidences as "information relating to [the] representation". Rule 1.6 protection is more extensive than either the attorney-client privilege or work product doctrine. The confidentiality must be protected even after the representation ends.

Any destruction of client files must be done in such a way as to protect this confidentiality. The Board recommends that any destruction be accomplished by burning, shredding, or some similar manner which results in complete destruction. There are also bonded companies which specialize in destroying documents in a secure manner. Local financial institutions would be a good referral source to locate these companies.

APPROVED by the Lawyer Disciplinary Board March 8, 2002.

Allan N. Karlin, Chairperson
Lawyer Disciplinary Board

[1] ABA opinions are not binding in West Virginia, but are generally persuasive. ABA informal opinions are not as persuasive as formal opinions.

[2] For information on the when the lawyer may charge the client for this copy of the file, see L.E.I. 89-02.

[3] Lawyers need to be careful when maintaining original wills, trust agreements, and similar documents. By maintaining these original documents, the lawyer may owe an ongoing obligation to the client to advise of applicable changes in the law.