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Retention, Storage and Disposition of Closed Files
The following comments are offered as guidelines or suggestions in response to frequent inquiries received as to retention, storage and disposition of closed files.

Tenn. Sup. Ct. R. 8, RPC 1.16(d)(2) and (3) state:

  (d)

Upon termination of the representation of a client, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, including:

   

(2) promptly surrendering papers and property of the client and any work product prepared by the lawyer for the client and for which the lawyer has been compensated;
(3) promptly surrendering any other work product prepared by the lawyer for the client, provided, however, that the lawyer may retain such work product to the extent permitted by other law but only if the retention of the work product will not have a materially adverse affect on the client with respect to the subject matter of the representation;

ABA Informal Opinion 1384 (3/14/77), even though dated, provides relevant guidance and suggestions as incorporated, in part, herein below:

All lawyers are aware of the continuing economic burden of storing retired and inactive files … .

A lawyer does not have a general duty to preserve all of his files permanently. Mounting and substantial storage costs can affect the cost of legal services, and the public interest is not served by unnecessary and avoidable additions to the cost of legal services. But clients (and former clients) reasonably expect from their lawyers that valuable and useful information in the lawyers’ files, and not otherwise readily available to the clients, will not be prematurely and carelessly destroyed, to the clients’ detriment … . We cannot say that there is a specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files. Good common sense should provide answers to most questions that arise.

With the foregoing limitations in mind, the following considerations are suggested:

  1. All items furnished to the lawyer by or in behalf of the client and the “end product” shall be returned to the client.
  2. A lawyer shall 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.
  3. 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.
  4. In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents 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.
  5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.
  6. In disposing of a file, a lawyer should protect the confidentiality of the contents.
  7. 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.
  8. A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.

In addition to item 5 cited above, Tenn. Sup. Ct. R. 9, Section 29.1(A)(2), in reference to maintenance of trust funds, specifically states:

(2) Every lawyer engaged in the practice of law in Tennessee shall maintain and preserve for a period of at least five years, after final disposition of the underlying matter, the record of the accounts, including checkbooks, canceled checks, check stubs, vouchers, ledgers, journals, closing statements, accounting or other statements of disbursements rendered to clients or other parties with regard to trust funds or similar equivalent records clearly and expressly reflecting the date, amount, source and explanation for all receipts, withdrawals, deliveries and disbursements of the funds or other property of a client. The five year period for preserving records created herein is only intended for the application of this rule and does not alter, change or amend any other requirements for recordkeeping as may be required by other laws, statutes or regulations.

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