Pennsylvania Bar Association Legal Ethics and Professional Responsibility
Formal Opinion 99-120 Retention of Client Files
The Pennsylvania Bar Association Committee-on Legal Ethics and Professional Responsibility is frequently questioned by lawyers regarding ethical considerations relating to the safeguarding and destruction of client files. This Formal Opinion
supersedes all prior inconsistent Opinions of the Committee or its members and should be reviewed for guidance by Pennsylvania lawyers when they are considering disposing of a client's file.1 For guidance on attorney's retaining liens and charging liens and the
circumstances under which a client is entitled to the return of a file, see Formal Opinion 94-35, Ethical Considerations in Attorneys' Liens.
Rule 1. 15 (a), entitled "Safekeeping Property," provides, in pertinent part:
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be preserved for a period of five years after termination of the representation.2
The last sentence of the rule can be read two ways. It can be read to require attorneys to preserve clients' "other property" for five years, or it can be read to require that "complete records" of both account funds and of other property shall be kept for five years. The rule is simply not clear. It either mandates actual retention of clients' property for five years or it simply requires that a complete record relating to the property be kept for five years. The Comment to the Rule offers no clarification or enlightenment. But as is demonstrated by the discussion below, the more reasonable reading of the rule is that it does not
establish a flat, five-year period for the retention of client files.
The term "property" in the Rule should be interpreted to include anything held by the attorney for the client, including the client's file. The Pennsylvania Commonwealth Court has opined:
that its property held by an attorney be turned over, under Rule 1. 15 (b) the attorney must comply.
Maleski v. Corporate Life Insurance Company, 641 A 2d I (Pa.Cmwlth. 1994),
reconsideration denied, 641 A.2d 7 (Pa.Cmwlth. 1994).3
The American Bar Association and the Philadelphia Bar Association have addressed the identification of client's "property" in light of the client's entitlement to the return of property.
The American Bar Association's Committee noted that:
The attorney must return all of the materials supplied by the client to the attorney .... On the other hand, in the Committee's view, the lawyer need not deliver his internal notes and memos which have been generated primarily for his own purposes in working on the client's problem. Between these extremes are the items about which you may be uncertain. In the Committee's view, upon request by the client you should deliver all other material which is useful to the client in benefiting fully from services he has purchased from you .... It must be kept in mind that the Committee cannot answer questions of law. In the gray areas, what is the lawyer's property and what is the client's property in a particular case are questions of law governed by the law of the applicable jurisdiction. The ethical principles involved are simple. The client is entitled to receive what he has paid for and to the return of what he has delivered to the lawyer. Beyond that, the conscientious lawyer should not withhold from the client any items which it could reasonably be anticipated would be useful to the client.
ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 1376 (I 977).4
The Philadelphia Bar Association's Committee has informally opined:
It is difficult, if not impossible, to state precisely which files must be turned over-correspondence, pleadings, attorney's notes and investigation, research memos, etc. As to this issue as well sound judgment must be exercised based on the particular facts and circumstances of each case.
Philadelphia Bar Association Professional Guidance Committee, Guidance Opinion 87-1 (1987).5
Going beyond the issue of what is the client's property, and directly addressing the
How to deal with the burden is primarily a question of business management, and not primarily a question of ethics or professional responsibility. 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 costs 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 client's detriment.... We cannot say there is a specific time period during which a lawyer must preserve all files.... Good common sense should provide answers to most questions that arise.
ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 1384 (1977).
A thorough reading of the articles published in legal professional journals and periodicals on file retention and destruction reveals the following recurring, common
recommendations:
1. Lawyers and law firms should develop a detailed file storage, management and
retention policy and should follow the policy consistently. The policy should address the return to the client upon the conclusion of the matter, case or transaction of all original documents such as business records, deeds, estate papers, title insurance policies and abstracts, and papers personal to the client. Such a policy should further include the direction of a closing letter to clients which notifies them of their entitlement to take any documents not previously furnished to them and may advise of a date on which the file will be destroyed in a manner which will protect the client's confidentiality.
2. The decision on how and when to destroy part or all of a file should be made by a lawyer, not by an office manager, paralegal or other staff person.
3. Regard to statutes of limitations (e.g., lengthy statute of limitations regarding minors' claims), substantive law (e.g., IRS audit regulations, Pennsylvania Civil Rules regarding powers of attorney) the nature of the particular case and the nature of the client's
particular needs may play a significant role in a decision to destroy a file. Simply establishing a flat period of time after which all contents of all files will be destroyed is not feasible or reasonable. A dominant consideration should be the instructions and wishes of the client. Written inquiry may be sent to the client requesting advice on the disposition of their files. Unless the client consents, a lawyer should not destroy or discard any of the contents of a file which can reasonably be considered to be the
property of the client. Where a client cannot be located after a diligent search, the client's property may be deemed abandoned under applicable unclaimed property statutes. A lawyer should maintain and dispose of such abandoned property in accordance with the applicable statutes.6
disposition or destruction should be conducted so as to protect the client's continuing entitlement to confidentiality.
5. A detailed, accurate index should be maintained regarding all files destroyed or returned to clients. Consideration should be given to permanent retention of the index, and to permanent retention of copies of initial engagement letters, letters notifying clients of file destruction dates, clients' written consent to destruction and any other critical documents.
Rule 1.15 requires that a complete account of clients' property be preserved for five years following the termination of representation.7 Rule 1. 16(d) requires that upon termination of representation, a lawyer shall take steps to protect the client's interests. Those steps include the surrender of papers and property to which the client is entitled. Neither Rule 1. 15 nor Rule 1. 16 nor the Comments to either rule clarify just when termination of representation takes place. Rule 1. 16 addresses termination of representation by the attorney's withdrawal, or his or her discharge by the client or court. It does not address the more ordinary, natural termination of representation when a matter is concluded. In certain matters and instances, termination of representation may be easily identified. In other matters and in instances of the extension of ongoing services to a particular client, termination may be difficult to define. In disposing of any file, in lieu of a focus on whether the representation has terminated, emphasis must be placed on the client's needs and the client's consent. It may be advisable for attorneys to inform clients, even in the initial engagement letter, of the fundamentals of their file retention policy so clients are prepared to retrieve their original documents at the conclusion of the matter and are further prepared for the attorney's later request for their consent to the destruction of the file.
PBA Legal Ethics and Professional Responsibility Committee By: Jane Roach, Member
Thomas G. Wilkinson, Jr. Aims C. Coney, Jr. Co-Chairs
CAVEAT: The foregoing opinion is advisory only and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. This opinion carries only such weight as an appropriate reviewing authority may choose to give it. Moreover, this-is the opinion of only one member of the Committee and is not an opinion of the full Committee.
SUGGESTED RETENTION PERIOD
CRIMINAL Retain until all appeals and post-conviction habeas periods have expired. DIVORCE Following order of dissolution, retain until time periods for performance of any terms ` under court order or any settlement agreement have expired.
PERSONAL INJURY Retain until all claims against potential defendants are exhausted. Retain files containing settlements for minors until two years following attainment of age of majority.
REAL ESTATE Retain five years after closing on sale or foreclosure.
ESTATE PLANNING Retain until client's death plus probate period.
IRS TAX RECORDS Retain for seven years. IRS regulations give 6 years to pursue any omission of more than 25 percent of income. Add one year for cushion.
CONTRACT LITIGATION Retain five years after satisfaction of judgment or five years after filing if not brought to trial.
BANKRUPTCY Retain five years after discharge or payment or discharge of trustee or receiver.
++ Firm retention policy should establish a procedure for routine destruction of files that have passed the established retention period. File materials (including paper, disk, recording) should be destroyed in a manner to protect client confidentiality while ensuring complete destruction, e.g., burning, shredding, etc.
____________________
Footnotes:
1This Formal Opinion does not address a lawyer's obligations with regard to incriminating property received from the client as discussed in Commonwealth v. Stenhach, 514 A.2d 114 (Pa. Super. 1986).
3The Maleski Court quoted parenthetically from In Re: Kaleidoscope, Inc., 15 B.R. 232 (N.D. Ga. 198 1), revd on other grounds, 25 B.R. 729 (N.D. Ga. 1982)("an attorney ... has no right or ability to unilaterally cull or strip from the files created or amassed during his representation of that client documents which he determines the client is not entitled so see. The client is either entitled to all of the file or none of it."). In citing In
Re: Kaleidoscope, Inc., the Maleski Court noted "[w]e find this reasoning persuasive." Maleski, supra, at 6.
4This Opinion was issued prior to the promulgation of the Model Rules of Professional Conduct, the source of Pennsylvania's ethics rules. Nevertheless, it remains relevant and applicable to the topics of this Opinion.
5See also Philadelphia Bar Association Professional Guidance Committee Opinions 95-6, 94-12, 93-22, 93-20.
6See, e.g., 72 P.S. 1301.1 et seq., Disposition of Abandoned and Unclaimed Property (West 1995).
