There is no one safe answer that applies to all files, regardless of importance or contents. An attorney has a continuing responsibility for client property that he or she holds, and that extends to original client documents that the attorney may for some reason have in his/her possession. Therefore, unless the attorney is willing to guarantee the safekeeping of these original documents, at the outset of the case, they should be copied and returned to the client, with the attorney retaining copies. All material in files needs to be analyzed for importance and dealt with accordingly. Often at the close of a matter much of what is in the file is duplicated elsewhere (copies of related briefs or opinions) or may simply be “scratch” notes, and this can be destroyed. Material that might be helpful for future research may be copied or moved to a “brief bank” location. The remainder must be analyzed in terms of such things as whether the matter may re-open (when do all applicable statutes of limitation expire?), malpractice, statutory or business reasons for retaining information longer than usual, and so on.

The Florida Bar has no official guidelines for retention and destruction in place that apply to all files (other than regulations stipulating that trust accounting records, contingency fee agreements and closing statements, and statement of insured client’s rights must be maintained for a minimum of six years). However, we can offer considerable assistance to you in constructing your firm’s policy (First piece of advice: make sure you have one, and that it is in writing). A Model File Retention Policy is available in the Ethics Informational Packet on Closed Files.

Some factors to consider when disposing of client files:

• A lawyer should preserve an index or identification of the files that the lawyer has destroyed or disposed of.  You can attach the dated receipt from the shredding service to the list of destroyed files.
• Authority to dispose of a file should be obtained from a client whenever possible, so a diligent attempt should be made to contact all clients and determine their wishes.
• Absent client authority to dispose of files, an attorney should individually review files and be satisfied that no important papers of the clients are contained in the file before destruction.

Know the rules:

• Rule 4-1.5(f)(5) requires that lawyers retain copies of executed contingent fee contracts and executed closing statements in contingent fee cases for 6 years after the execution of the closing statement in each contingent fee matter.
• Rule 4-1.8(j) states that lawyers who are paid by insurance companies to represent insureds must retain a copy of the Statement of Insured Client’s Rights that the lawyer has certified was sent to the client for 6 years after the matter is closed.
• Rule 5-1.2(f) states that a lawyer or law firm that receives and disburses client or third-party funds or property must maintain the client trust account records required by this chapter for 6 years subsequent to the final conclusion of each representation in which the trust funds or property were received.

Relevant Opinions:

• Cost of copying file 88-11 Rec, 00-3
• Disposition
  • Associate leaving firm 93-4
  • Closing law practice 74-43, 77-1, 81-8
  • Deceased attorney’s files 74-43
  • Dissolving law firm 71-62
  • Partner withdrawing from firm 69-1
• Electronic records 06-1, 10-2, 12-3
• How long to keep 63-3, 81-8
• Property of lawyer rather than client 88-11, 88-11 Rec
• Retaining liens 71-57, 88-11, 88-11 Rec
• Technology, use of 06-1, 10-2, 12-3

See the Ethics Department’s complete Subject Index of Ethics Opinions. If you have questions about the aforementioned opinions you may contact the Ethics Hotline at 800.235.8619.

*Note: Advisory Ethics Opinions are not binding.

VIEWS AND CONCLUSIONS EXPRESSED IN ARTICLES HEREIN ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF FLORIDA BAR STAFF, OFFICIALS, OR BOARD OF GOVERNORS OF THE FLORIDA BAR.