Establish And Implement A File Retention and Destruction System

The conclusion of a client matter does not terminate the attorney’s responsibility with respect to the file (whether physical or electronic). Although this issue was clarified in New Jersey over a decade ago, many law firms are still unsure as to how long the obligation to preserve the file continues.

N.J. Advisory Comm. Op. 692 (2001) states that a lawyer is required to maintain those portions of the file which constitute “property of the client” for a period of seven years following conclusion of the matter if it was not been previously “returned to the client, disposed of pursuant to court order or agreement with the client, or preserved”. An express written agreement between the lawyer and client can shorten this time period. On the other hand, a lengthier period may be warranted depending on the circumstance. For example, an attorney may have business reasons for retaining files.

“Property of the client” includes original documents, photographs or other items entrusted to the attorney as well as “that which has been created or obtained by the attorney as part of the undertaking”. The opinion did not include items such as correspondence, pleadings, memoranda or briefs in the definition of client property.

A Supplement to Opinion 692 issued in 2002 specified that an attorney is required to take reasonable steps to notify a client that client property remains in a file which will be destroyed at the end of the seven-year retention period. The Supplement also notes that “a lawyer should not discard or destroy files relating to criminal matters while the client is alive”.

The Sharper Lawyer recommends:

(a) Develop and implement a written file retention and destruction policy;

(b) Set forth your policy regarding destruction of closed files in the retainer agreement;

(c) At the conclusion of representation, remind the client of the policy in the closing letter;

(d) If client property has not yet been returned at the end of the requisite retention period, use reasonable efforts to return the property and;

the (e) Protect client confidentiality in the file destruction process.

Categories: Practice Tips

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