Retention of Closed Clients' Files

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163 N.J.L.J. 220
January 15, 2001
 
10 N.J.L. 154
January 22, 2001
 

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
 
 
Appointed by the New Jersey Supreme Court
 

OPINION 692

Retention of Closed Clients' Files

The Advisory Committee on Professional Ethics has been asked for advice concerning the length of time an attorney must maintain a client file following the final disposition of a matter. For the reasons discussed below, we hold that such portions of the file which constitute property of the client must be either returned to the client, disposed of pursuant to court order or agreement with the client , or preserved and maintained for a reasonable period of time following the conclusion of the matter. Absent an express agreement that the file be subject to destruction at an earlier point in time, the client may assume availability of the file up to a date seven years after it has been closed, at which time it may be destroyed. In making this determination, the Committee considered, among other authorities, RPC 1.1 (Competence); RPC 1.4 (Communication); RPC 1.6 (Confidentiality of Information); RPC 1.15 (Safekeeping Property); RPC 8.4 (Misconduct), and R. 1:21-6.
RPC 1.15(a) directs a lawyer to safeguard the property of clients or third persons, and although complete records of ... account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after the event that they record, See footnote 1 1 neither the Rules of Professional Conduct nor the law of bailment prescribes or delimits the period of time the property itself need be maintained. Rather, RPC 1.15(b) compels the attorney to promptly notify clients or third persons of the receipt of property to which they are entitled and, except as otherwise permitted by law or by agreement with the client, promptly deliver the property to them. This requirement implies that property of the client may never be destroyed without the client's permission or some legal authority, such as a court order.
Clearly, that which the client has entrusted to the attorney, such as original documents, photographs or things, remains the property of the client. Additionally, depending upon the nature of the representation, that which has been created or obtained by the attorney as part of the undertaking and for which the client retained the services of the attorney constitutes property of the client. Original wills, trusts, deeds, executed contracts, corporate bylaws and minutes are but a few examples of documents which constitute client property.See footnote 2 2

As to the remainder of the file (correspondence, pleadings, memoranda, briefs, etc.), while some authorities consider most if not all such documents to be property of the client and therefore subject to the provisions of RPC 1.15, we see no ethical or practical reason to adopt that broad a definition of client property and decline to do so.
We recognize that an attorney may wish to preserve the material for purely business reasons. The potential of further business from the client, the usefulness of the material for similar matters undertaken for others and the protection that may be afforded the attorney should there be a claim of professional malpractice, unethical conduct or a fee dispute are examples of why an attorney may, for such reasons, choose to retain file material. Publications are replete with suggestions on the best practices in that regard. The question posed to this Committee, however, is confined to the ethical constraints, and we therefore present no specific advice with regard to the practical business aspect of the matter. Attorneys are well advised to familiarize themselves with the practical issues and the many suggested means of dealing with them.
Another purpose for which an attorney may choose to preserve closed file material is based upon the duty of professional care arising out of the specific attorney-client relationship. Under such circumstances, the material is maintained not because it is the property of the client, but rather because it would be consistent with the professional responsibility of the attorney to anticipate the potential future need for such material by the client. Examples of such material would be medical records which might otherwise become unavailable, financial data obtained which may be useful to establish the basis of an investment for future tax purposes, etc.
Failure to retain a client's closed file will not necessarily result in discipline. Simple negligence does not equate with unethical conduct. Therefore, unless the destruction of the file material constitutes an act of gross negligence or, along with the destruction of other files, a pattern of negligence, RPC 1.1, or misconduct, RPC 8.4(c) and (d), it alone should not be considered an unethical act.
Accordingly, assuming that an attorney's destruction of a client file does not constitute fraud, dishonesty or misrepresentation, and that it is not done purposefully to prejudice the administration of justice, RPC 8.4(c) and (d); does not constitute gross negligence or a pattern of negligence, RPC 1.1; and does not violate the provisions of RPC 1.15 or R. 1:21-6, the destruction of a client file is ethically permissible subject to the admonitions below.
It is well settled that the entire file belongs to the client and must be provided upon request.See footnote 3 3 Cf. Opinion 554, 115 N.J.L.J. 565 (1985) (a client or the client's new attorney is entitled to receive the file with everything which is or was essential for the completion of the litigation); Opinion 203, 94 N.J.L.J. 298 (1971) (a client has the right to be represented at all times by counsel of the client's choosing and the file should be delivered to the attorney selected by the client). The question presented here, however, deals with the situation where no specific request has been made. Inherent in the attorney-client relationship is an expectation on the part of the client that the attorney may be called upon to and will provide requested information which is necessary to the client's needs. RPC 1.4 (Communication). Therefore, at the close of the file, it is presumed that for some reasonable period of time a client may assume that the entire file would be available if it were requested.
In establishing a fair and reasonable period of time, reference may be made to the New Jersey Administrative Code which reflects state policy.See footnote 4 4 The retention period required by the vast majority of licensed professions is seven years. That being the case, in providing a safe harbor to the attorney who has conformed to the ethical requirements discussed above, we conclude that absent an express agreement to the contrary, the client should not reasonably expect the attorney to retain the file for the client's benefit more than seven years after the conclusion of the representation.See footnote 5 5 After a period of seven years has passed, such file material may ethically be destroyed.
Additionally, we see no reason why a client may not expressly agree to the destruction of a closed file at any earlier time. A general retention policy adopted by the firm or a specific understanding with regard to retention in the given case may be expressly agreed upon in any one of a number of ways, such as within a retainer agreement or by written acknowledgment at a point in time before or after the file has been closed. If such written agreement is intended to be made applicable to client property as defined above, RPC 1.15, the agreement should be executed only after the property is in the attorney's possession and should specifically describe the property intended to be destroyed or otherwise disposed of.
Lastly, the manner in which client files are destroyed must conform to the confidentiality requirements of RPC 1.6. Simply placing the files in the trash would not suffice. Appropriate steps must be taken to ensure that confidential and privileged information remains protected and not available to third parties.
* * * Footnote: 1 1
 
See also R. 1:21-6(b)(9) which provides that copies of those portions of each client's case file reasonably necessary for a complete understanding of the financial transactions pertaining [to the event which they record] must be retained for a period of seven years. Footnote: 2 2
Depending on the nature of the representation and the matter, the list of such documents may include appraisals, banking records, real estate and transactional closing documents, employee benefit plans, due diligence documents and reports, governmental authorizations or permits, governmental notices of violations or compliance, policy and procedures manuals, environmental site investigation reports, fiduciary accounting, financial records or statements, insurance policies, lease records, loan documents, securities filings, tax determinations, tax filings or returns, original trademarks, copyrights and patents, etc. This listing is illustrative only and does not serve to limit the types of documents that may be the property of the client. Footnote: 3 3
An exception is data relating solely to the attorney-client relationship and data taken from another unrelated file. Footnote: 4 4
NJAC 13:30-6.5(b) (Medical Examiners - Seven Years) ; NJAC 13:30-8.7(c) (Dentistry - Seven Years); NJAC 13:34-7.1(d) (Marriage and Family Counselors - Seven Years); NJAC 13:34-18.1(g) (Professional Counselors - Seven Years); NJAC 13:33-1.29(a) and 39-7.14(f) (Ophthalmic Dispensers/Ophthalmic Technicians - Six Years); NJAC 13:35-9.11(b) (Acupuncturists - Seven Years); NJAC 13:36-1.8(b) (Mortuary Science - Six Years); NJAC 13:38-2.3(a) (Optometrists - Seven Years); NJAC 13:39A-3.1(c) (Physical Therapy - Seven Years); NJAC 13:42-8.1(g) (Psychologists - Seven Years); NJAC 13:44-4.9(b) (Veterinarians - Five Years; Three Years if patient has died); NJAC 13:44E-2.2(b) (Chiropractic Examiners - Seven Years); NJAC 13:44F-8.2(a) (Respiratory Care - Seven Years); and NJAC 13:44G- 12.1(e) (Social Worker Examiners - Seven Years). Footnote: 5 5
Although concerned primarily with confidential communications, to the extent that Opinion 542, 114 N.J.L.J. 387 (1984) d eems it appropriate to destroy a file based upon a contract between the insured and the insurance company, it is now here rejected.