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:
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(d)
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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:
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| (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; |
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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:
- All items furnished to the lawyer by or in behalf
of the client and the “end product” shall be
returned to the client.
- 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.
- 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 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.
- 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.
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:
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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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