File Retention Guidelines Including Commentary

The File Retention Guidelines, adopted on December 6, 1999 by the Board of Governors of the Connecticut Bar Association, cannot be considered a safe harbor for the retention or destruction of files. Regardless of any stated policy, the client has certain property interests in many types of documents – deeds, wills, and contracts are obvious examples. Others are not so obvious. For instance, who owns expert reports obtained by attorneys and paid for by clients? Similarly, does the client own every sheet of paper for which he or she has paid a copy charge? If a client has paid an attorney to attend a meeting, do the notes of that meeting belong to the client? To avoid such questions, all attorneys are encouraged to include a paragraph in their retaining agreements setting forth how documents will be retained or destroyed upon conclusion of the matter.

Nonetheless the guidelines set forth below do set forth standards of practice and hopefully will aid firms and attorneys in the formation of their own retention policies.

1. Notwithstanding any of the other policies set forth below, the retention or destruction of documents may be determined by written agreement between the attorney and the client.

Commentary:

A short paragraph, included in a retaining letter, setting forth a firm’s retention and destruction policy settles the matter between attorney and client. Properly drawn, it is a contract. Further it can be tailored to fit the particularities of the practice and the matter at hand. As stated above, Attorneys are urged to include a paragraph in their retaining agreements setting forth how documents will be retained or destroyed upon conclusion of the matter. The guidelines set forth below offer a check list of considerations for developing such an agreement.

"Document" is used in these guidelines in its broadest sense and includes all types of printed materials kept by an attorney regarding work performed for a client whether created by hand, machine or electronics.

2. A copy of a document need not be kept after the original has been returned to the client or other owner.

Commentary:

Many times an attorney will find it in his or her interest to retain a copy of a document returned to a client or other rightful owner, but this guideline sets forth a standard of practice not requiring an attorney to do so.

3. All documents shall be kept six years from the date of completion of services rendered by an attorney.

Commentary:

This guideline reflects the most common practice found among attorneys. This is no safe harbor. Some older firms have files going back to the turn of the century. The attorney must also exercise his or her judgment as to retaining certain documents which may be important to the interests of the attorney.

4. All original documents signed by the client and documents conferring or imposing legal rights or obligations shall be kept six years from date of such signing or the cessation of such rights or obligations whichever is longer. No such document shall be destroyed until the client or owner is mailed written notice at least 30 days before destruction of the document.

Commentary:

This guideline recognizes that many documents are the property of the client, not the attorney and the attorney may have no rights to destroy them, ever. The notice provision is considered a reasonable time of notice allowing an attorney to claim abandonment. Such a position should be stated in the notice.

This guideline also recognizes that certain documents such as a certificate of title or legal opinion are effective for a period of time after issuance.

5. Documents may be copied and retained in any medium which accurately depicts the original document and from which accurate copies can be made. The originals of any documents so copied, other than those documents set forth in paragraph 4 above, need not be kept after their copying.

Commentary:

Each year it becomes less expensive to retain documents in some electronic format. The cost now approximates the cost of a commercial paper copy. As electronic scanning becomes more common, file retention will become less burdensome. Any firm paying for storage should compare the costs of that storage against the cost of electronic storage.

6. Any document which is kept as a permanent public record need not be kept after its recording. No such document shall be destroyed until the client or owner of the document is mailed written notice at least 30 days before destruction of the document.

Commentary:

Care must be taken to assure that the public record is indeed permanent. For instance, documents such as court files and UCC-1 financing statements are not. Recording, in and of itself does not entitle the attorney to destroy the original. It may be the property of the client or a third party and may have personal or sentimental value to the client.

7. Subject to the above guidelines, upon termination of practice, any documents still being retained by the attorney should be returned to the client or the client notified of any successor attorney agreeing to take upon the obligations of retaining those documents.

Commentary:

If attorneys follow the above guidelines, this one would, hopefully be inconsequential. Care must be taken to segregate all "active" documents and any files that may pose future problems for the retiring lawyer.