Boxes of old, closed-case files in the garage, or incurring monthly storage fees, can be a nightmare for both large firms and the sole practitioner. On the WSBA Ethics Line, it’s not uncommon for us to field questions by attorneys taking over an established practice and inheriting mountains of closed files. What can they do with the old files? Are there rules on file retention?
There is no Washington rule on file retention except that trust account records must be retained for at least seven years. RPC 1.15B.
Picking a retention schedule is up to the professional considerations of each attorney or firm. It’s a good idea to start with best practices, such as the Table of Suggested Dates for File. Also check with your insurance carrier, consider the nature of each case (some immigration cases may be “live” 20 years from the time of initial representation), and the possibility of malpractice or discipline claims.
In a recent advisory opinion, the Illinois State Bar Association canvassed several other states and suggested seven years is a reasonable “default” retention period for ordinary closed files. However, documents of independent legal significance, like original deeds or wills, must be returned to the client, filed with the court, or retained indefinitely.
Client files may be converted to electronic format as long as documents with intrinsic value are not destroyed without client permission. Read WSBA’s Advisory Opinion 2023 for more information.
Can you destroy closed files without giving clients notice?
The file is the client’s property and an attorney has a duty to safeguard a client’s property. See RPC 1.15A and Advisory Opinion 181. The best practice is to give all clients notice of the intent to destroy their file. In addition, your fee agreement and completion of engagement letter would have notified the client in advance of the file retention and destruction policy. Absent these, the Illinois Bar opinion recognized that trying to contact former clients can be time-consuming, expensive and “in many cases, futile.” It determined that old, closed files can be considered abandoned, so destroying them without notice is reasonable.
Lastly, make sure your method of destruction preserves client confidentiality (RPC 1.6). A reputable document shredding company should be sufficient.
- Create a file retention schedule and start managing your closed files now.
- Put your file retention/destruction policy in your fee agreement.
- Return all documents of independent legal significance with your completion of engagement letter.