3 things to know about the ethics of files

Due to renovations, we had to move our offices last week which meant we had to clean out our desks. And as you may know, when you clean out your desk, you learn about yourself. What we learned is that we should be featured on the TV show “Hoarders” due to the amount of “stuff” that we had hidden in our desks over the years. We also learned that James still has mini-cassettes in his desk in case he gets the urge to dictate into a handheld cassette recorder.

Another thing we learned was that we had files from matters that have long since ended. That led us to many questions like: Is that file mine? Or is it the client’s? And if it is the client’s, why am I paying to store someone else’s property? And finally: How long do I have to keep this file? The answers to these questions are not as clear as maybe they should be. As we struggle to answer them, here are three things to know about storing files.

1. Whose file is it anyway? Some parts of the file are the client’s

Most files contain a wide array of documents and other things — original documents from the client, lawyer notes, documents from other parties, court documents and even tangible property. Rule 1.16(d) gives some guidance on what to do with these materials. It states that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled.” In fact, some attorneys have been disciplined for failing to return client materials after client requests. See Matter of J.G., 700 N.E.2d 464, 465 (Ind. 1998).

But which materials are the client materials to which the client is entitled? A formal opinion recently issued by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility sheds light on this question. It states that at a minimum, when requested, a lawyer must surrender any materials provided to the lawyer by the client, legal documents filed with a tribunal (or those completed, ready to be filed, but not yet filed), executed instruments (like contracts), orders or other records of a tribunal, and correspondence of the lawyer connected to the representation on relevant issues, including email. ABA Comm. on Prof’l Ethics & Prof’l Responsibility, Formal Op. 471 (2015).

2. Parts of the files are yours

Although some parts of the file are the client’s, the client is not entitled to papers and property that the lawyer generated for the lawyer’s own purpose while working on the client’s matter. Id. For example, the lawyer does not necessarily need to provide to the client: drafts or mark-ups of documents to be filed with a tribunal, drafts of legal instruments, internal legal memoranda and research materials, internal conflict checks, personal notes, hourly billing statements, firm assignments, notes regarding an ethics consultation, a general assessment of the matter or documents that might reveal the confidences of other clients. Id.

However, this general rule comes with an exception: When the lawyer’s representation of the client in a matter is terminated before the end of the matter, protection of the client’s interest may require that the lawyer give the client certain materials generated for the lawyer’s own purpose. Id. For example, if a filing deadline is imminent in a continuing matter for which the lawyer’s representation has been terminated, and the lawyer has drafted but not finalized documents in connection with the filing deadline, the lawyer’s drafts should be provided to the client.

3. How long do I have to keep this file? 5 years. Maybe more. Maybe less.

We wish we could give you a definitive answer. We looked to ABA Informal Opinion 1384 for guidance and it stated that “[w]e cannot say that there is a specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files. … Good common sense should provide answers to most questions that arise.” ABA Comm. on Ethics and Prof’l Responsibility Informal Op. 1384 (1977). (Gee, thanks for your clear guidance. (Speaking of hoarding, did we just quote an opinion from when Elvis was alive?)).

If you are looking for something better to hang your hat on than “good common sense,” at least one Indiana authority gives a specific time frame for a specific kind of property. Rule 1.15(a) gives clear guidance for the maintenance of trust account records. It states that “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 termination of the representation.”

Since this area lacks bright-line rules, a tip for good practice would be at the end of the case, when you know you will not need the file anymore, to send notice to the client and ask them to come and get their file. Make sure to get a receipt showing that the client did, in fact, take the file. If you decide it is prudent to destroy files, keep a record of which files you have destroyed. And last, but not least, throw out those old mini-cassette tapes and go digital — it just makes “good common sense.”•

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James Bell and Jessica Whelan are attorneys with Bingham Greenebaum Doll LLP who assist lawyers and judges with professional liability and legal ethics issues. Bell is a regular speaker on criminal defense and ethics topics. He can be reached at [email protected] and Whelan can be reached at [email protected]. The opinions expressed are those of the authors.