Records Retention Considerations

Once a case has been closed, it is important to store the file so that it is available for use if a claim is made about the handling of the case. As a general rule, files should be maintained at least for the period of limitations applicable to legal malpractice actions, keeping in mind that the period of limitations is longer for some causes of action. The period of time that a law firm may be vulnerable to a claim is lengthened by exceptions to the statute of limitations, such as the discovery rule, continuous representation by the attorney, liability to nonclients and the period during which legal services may affect the client or his intended beneficiary’s duties and rights.

Retain any document that was important to the lawyer to have in writing in the first instance, such as retainer agreements, correspondence regarding important events, copies of materials documenting the conclusion of the legal matter and billing materials. These documents will evidence the lawyer’s compliance with the standard of care or resolve future questions concerning the representation.

Property of the client, such as original business records, personal diaries, original contracts, releases, other written instruments representing the culmination of the legal representation and tax returns, should be returned to the client.

If not delivered to the client, records containing information that the client may need and would not be able to obtain elsewhere should be kept by the lawyer.

ABA Model Rule 1.15(a) contains a provision that complete records of client trust account funds and other property shall be kept and preserved by the lawyer for a certain period of time after the termination of the representation. (Florida requires that such records be kept for 6 years. Illinois requires that they be kept for 7 years. Be sure you check with the requirements of your jurisdiction.)

Your jurisdiction may have other rules of court requiring that certain records be kept for a certain period of time. For example, Illinois Supreme Court Rule 769 requires that lawyers maintain (for an unspecified period of time) records identifying the name and last known address of each of the attorney’s clients and an indication as to whether the representation is ongoing or concluded; and that lawyers maintain for at least seven years all financial records related to the attorney’s practice including bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns and tax reports. If any portions of the file are destroyed or discarded, care should be taken to preserve the confidentiality of the information contained in the documents. An index of the file records that have been delivered to the client or destroyed should be maintained.