Cincinnati Bar Association
Ethics & Professional Responsibility Committee
Opinion Number 86-87-3
Statement of Inquiry
The inquiring attorney ceased practicing law in Cincinnati approximately four years ago. He is currently retaining his former clients' files in a friend's basement in Cincinnati. He has requested what are his obligations under the Code of Professional Responsibility to retain the files.
There are no disciplinary rules or ethical considerations that specifically address the issue of disposition of a lawyer's closed or dormant files. The ABA Informal Opinion 1384 (1977) provides general guidance.
According to the ABA Informal Opinion 1384, a lawyer is not required to permanently preserve all his/her files. Client, however, have a legitimate expectation that lawyers will not prematurely or carelessly destroy valuable and useful information in a file to the client's detriment. The opinion suggests the following guidelines:
- Unless the client consents, lawyers should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or in behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records.)
- A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client's position in a matter for which the applicable statutory limitations period has not expired.
- A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.
- In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and content of some files may indicate a need for longer retention than do the nature and contents of other files. Based upon their obvious relevance and materiality to matters that can be expected to arise.
- A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer's receipt and disbursement of trust funds.
- In disposing of a file, a lawyer should protect the confidentiality of the contents.
- A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.
- A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.
This Committee concurs with the general guidelines provided by the Informal Opinion. It is consistent with the ethical considerations in EC 4-6 and EC 6-4. These ethical considerations oblige a lawyer to preserve the confidences and secrets of his client even after termination of his employment and that a lawyer should use proper care to safeguard the interests of his client, by also considering the place and manner of storage.
To meet the principles implicit in these ethical considerations and the ABA Informal Opinion, an attorney may go through each file to determine if any documents belong to the client or if there is other useful information in the file to the client. The lawyer should contact the client about these papers to determine whether the client wants delivery. As an alternatice, the lawyer may simply deliver the complete file to the client with advice regarding which documents may be appropriate for the client to preserve.
It should be obvious from the above that a lawyer must exercise his/her discretion in the management of a client's closed files. This opinion suggests the relevant guidelines a lawyer should consider in the dispoing of closed files. Ultimately, however, the disposition of clients' file is the responsibility of the individual lawyer.
This opinion is consistent with opinions that have been issued by other Bar Associations on this subject matter. See Association of the Bar of the City of New York, Formal Opinion 1986-4; 4/3/86; Bar Association of Nassua County, New York, Opinion 81-10; 9/14/81; Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Opinion 82-15; Published 2/6/85; and Kentucky Bar Association Ethics Committee Opinion E-300; 1/11/85.