Are You Drowning in Closed Files?

It seems relatively easy to set up a filing system and add files to it. But what do you do when you absolutely run out of room to store any more files? Which ones do you get rid of? How soon should you dispose of them, and how do you go about doing it? And what ethical obligations do you have with respect to file storage and disposition?

What seems, at first glance, like a simple clerical task can spiral into an ethics nightmare if you’re not careful. Every lawyer needs to understand the professional obligations related to file maintenance, production, storage and destruction, and to have a good system in place to make sure that those obligations are properly met at every stage of the process.

While the Alabama Rules of Professional Conduct do not contain any specific requirements regarding the methods for maintaining client files, the length of time those files must be retained, or the method by which they must be disposed of, the Disciplinary Commission of the Alabama State Bar issued Formal Opinion 2010-02 on October 27, 2010, giving guidance on many of these issues as well as issues relating to file ownership and production, and the ethical requirement to backup electronic data. All lawyers should consider the opinion mandatory reading, because it makes explicit as ethical requirements many activities that previously would have simply been considered best practices.

Opinion 2010-02 requires that lawyers:

  • develop a system for dealing with client files;
  • keep individual client files organized contemporaneously and with an orderly index system;
  • establish a file retention schedule;
  • notify clients in writing of the firm’s retention practices and schedule when the matter is accepted;
  • remind clients of the retention schedule at matter close;
  • produce and turn over the “entire” client file (as defined in the opinion) when required;
  • preserve certain types of property even after the rest of the file is destroyed; and
  • handle disposition of their client files confidentially, according to the requirements of the opinion and the lawyer’s file management system.

The Practice Management Assistance Program has drafted sample forms for use in setting up your own file retention system. If you have any questions or need additional help with this, please give us a call.

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