Page 7 - JanuaryFebruary26 Report

The following is an example of commonly used
language in a termination and/or closing letter:
Pursuant to the firm’s file retention policy, the following original documents
previously provided to the firm are enclosed:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
Copies have been retained in your file.
-or-
Pursuant to the firm’s file retention policy, your file has been reviewed to confirm
that any original documents provided to the firm during the course of representa-
tion were previously returned to you. The firm is not in possession of any additional
original documents.
The firm will maintain your file for ________ years from the above date. After
that date, the file and its contents will be permanently destroyed. You may request
your file and its contents at any time before the date of destruction.
tion should be reiterated to the client in
the closing letter at the end of the case.7
In addition, pursuant to Rule 1.15(a),
attorneys must keep IOLTA records for
seven years.8 This includes the fee agree-
ment of any client who had money in
the IOLTA.9 You should also consider
the statute of limitations (one year) and
statute of repose (four years) for attorney
malpractice claims in Ohio10 when
designing your file retention policy.
A cause of action for legal malpractice
accrues and the one-year statute of limita-
tions begins to run on the latter of when:
1) the client discovers or, in the exercise of
reasonable diligence should have discov-
ered, the resulting damage or injury; or
2) the attorney-client relationship for
that particular transaction or under-
taking terminates.11 A copy of the client
file is absolutely necessary in defending
a malpractice claim. As such, many
malpractice carriers impose their own file
retention period on the attorneys and law
firms they insure. Be sure to check with
your malpractice carrier to ensure your
file retention policy complies with their
required retention period.
Ohio’s adoption of a statute of repose
in 2021 should give attorneys more peace
of mind about disposing of closed files.
While the statute of limitations may begin
ticking at different times, the statute of
repose begins ticking at the time of the
lawyer’s act or omission, regardless of
when the client discovers the error.12 With
certain limited exceptions, Ohio’s statute
of repose bars all legal malpractice claims
commenced more than four years after the
occurrence of the lawyer’s act or omission
that forms the basis for the claim.13
Attorneys are often hesitant to dispose
of any files. However, if you design and
follow a good file retention policy, you
will be less likely to end up in the posi-
tion of figuring out what to do with an
overabundance of files if your partnership
ends. For a sample document retention
policy that can be used as a starting point
in designing your own, please see the
attached sample box.
In addition to having a solid partner-
ship agreement and a file retention policy,
everyone in your partnership should have
a succession plan to avoid holding onto
a plethora of files. The Board of Profes-
sional Conduct provides an Ethics Guide
on Succession Planning (2017). OBLIC
requires a named successor for your
malpractice policy. An Inven-
tory Attorney Program form
and checklist are available
on the CBA website. Take
advantage of these resources.
Take steps now to protect yourself
and your clients if your partnership ends.
Include information in your partnership
agreement on how files will be divided if
the association comes to an end, or in the
event a partner leaves the firm or passes
away. Make sure your fee agreements
and engagement letters clearly explain
to clients how to obtain their files, how
long their files will be retained, and what
will happen to their files if an attorney
leaves the firm. Reiterate your file reten-
tion policy in your closing letter. If you
deal with client file issues up front, you
can avoid headaches down the line, as you
head into retirement or move on to your
next great adventure in the practice of law.
Rachel Alexander is an Associate at Moskowitz &
Moskowitz LLC. Phyllis Bossin is Principal at Phyllis
G. Bossin Co. LPA. George Jonson is Partner at
Montgomery Jonson LLP. Megan Roach is Assistant
Counsel at the Cincinnati Bar Association.
1 Paper files need to be maintained in secure, confiden-
tial storage with access to the involved lawyers until
the files reach the document retention date and then
confidentially destroyed.
2 If the old firm is going out of existence, clients with
closed files in storage should be notified of the fact the
firm is closing, and how to obtain a copy of their file.
The alternative is to keep the old firm website up, with
the information that the firm closed on (date), the new
contact information for each attorney at the old firm,
and information about how to get a copy of a client file
–
specifically, contact the lawyer who worked on your
case. That website should stay up until the last of the
old firm’s files have reached the document destruction
date and all files have been destroyed.
3 See Prof. Cond. R. 1.6 and 1.9.
4 The server will need to be maintained until the
document destruction date for all stored files has been
reached and all stored files have been destroyed.
5 Ohio Board of Prof. Cond., Ethics Guide- Client File
Retention (2016), p. 4.
6 See Exhibit A Box
7 See Exhibit B Box
8 Prof. Cond. R. 1.15(a). Also note that “Upon dissolution
of any law firm, the former partners, managing partners,
or supervisory lawyers shall promptly account for all
client funds and shall make appropriate arrangements
for one of them to maintain all records generated
under division (a) of this rule.” Prof. Cond. R. 1.15(f).
9 Id.
10 O.R.C. 2305.117
11 O.R.C. 2305.117(A); Omni-Food & Fashion, Inc. v. Smith,
38 Ohio St. 3d 385, 385, 528 N.E.2d 941, 942 (1988).
12 Mark M. Mikhaiel & M. Elizabeth Monihan, Ohio Enacts
a Legal Malpractice Statute of Repose, 31 No. 5 Ohio
Prob. L.J. NL 2 (May/June 2021)
13 O.R.C. 2305.117(B)-(D).
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