The Oklahoma Bar Journal April 2023

A ttorneys & A ging

A Guide to File Retention and Destruction

By Jimmy Oliver

E VERY ATTORNEY IN PRIVATE PRACTICE has been faced with a file cabinet bulging with files related to long-finished matters and past clients. Perhaps more typical these days is an attorney who is faced with unorganized or cluttered electronic files on computers, hard drives or other external servers. Whether the file is paper or digital, an attorney has certain obligations to maintain and properly destroy a client’s file, even when the case is finished. What policies should an attorney have in place to ensure proper file retention and destruction?

5) Criminal matters where

The Oklahoma Rules of Professional Conduct do not provide specific instructions about file reten tion and destruction. However, Rule 1.15(a) requires that complete records of client account funds and other cli ent property be maintained for five years after termination of the rep resentation. Rule 1.15(a) mirrors the American Bar Association’s model rule on the same subject. It would seem a general office rule should be to retain a file for five years, but the length of time to retain a file should take into consideration the type of case and the contents of the file. Consider, for example, the follow ing types of cases: 1) Matters involving a minor child 2) Estate planning and probate 3) Guardianship and adoption matters 4) Civil cases where a judgment must be renewed

Every lawyer or firm should have a written file storage, man agement, retention and destruction policy that is followed consistently. Consider the following when developing a file retention policy: 1) The time period a file will be maintained and then destroyed 2) Returning original docu ments to the client immedi ately after use 3) How and at what cost a client may request a copy of the file 4) Notification to a client of

expungement opportunities exist in the future 6) Support or custody mat ter in which children are minors or the support obli gation continues 7) Corporate records and books 8) Intellectual property files 9) Real estate title claims and title insurance work 10) Documents that would be needed to defend against a malpractice claim or a claim the attorney violated the Rules of Profession Conduct 1 Many attorneys believe a file should be retained for longer than five years. Ultimately, the length of file retention should be based on the needs of the client and the particulars of each case with consideration of any applicable substantive law or statute of limita tions. An attorney should also speak to their malpractice carrier to see if it has any specific file retention obligations.

the file retention policy and the date the file will be destroyed

The file retention process begins when a new client is retained. The employment contract or fee agree ment should include a section that notifies the client that their file will eventually be destroyed and the

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

18 | APRIL 2023

THE OKLAHOMA BAR JOURNAL