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by Christian A. Stiegemeyer, Risk Management, The Bar Plan Mutual Insurance Company
Lawyers customarily think of the files in their offices as their files. That is, the paper and documents contained in those files belong to them, the lawyers, not their clients. However, in it's Formal Opinion 115, binding on all Missouri attorneys, the Office of Chief Disciplinary Counsel concluded that under the Missouri Rules of Professional Conduct, the file belongs to the client from "cover to cover." This includes documents brought to the attorney by the client or the client's agents, pleadings pertinent to the case, depositions or other discovery documents pertinent to the case that the client was billed and has paid for, and "work product" (i.e. notes in the file consisting of attorney's impressions about the case and notes containing comments and thoughts made during phone conversations with the client). Informal Opinion 980141.
If the client requests it, the lawyer must turn over the original file. If the lawyer chooses to keep a copy of the file, the lawyer may do so at the lawyer's own expense. However, those items for which the attorney has borne out-of-pocket expenses, such as transcripts, may be retained until client pays for them. While Formal Opinion 115 does not mention it, the ability of a lawyer to ethically withhold such items may be very dependent on an agreement and understanding between the lawyer and the client that the client will be responsible for paying for such items. Formal Opinion 115 further states that Missouri does not recognize the common law retaining lien. Therefore, if a client owes an outstanding fee and requests the file from the lawyer, the lawyer cannot hold the file in order to force client to pay the lawyer's fee. Files must be maintained by a lawyer absent the consent of the client to destroy it. Informal Opinion 950151.
Items in the file of intrinsic value, say an original will, stock certificates, unrecorded deeds, or any document that evidences the client's interest in money or property, may never be destroyed. Informal Opinion 950151.
When files are destroyed, the destruction must be done in a way "which assures that client confidences are not revealed." Informal Opinion 990122.
The first step in handling files is to establish a file retention policy. That is, the lawyer or firm must decide how long it intends to store and keep files after the representation is concluded. At The Bar Plan Mutual Insurance Company, we generally recommend, for legal malpractice purposes, that client files be maintained for a minimum of five years from the conclusion of the representation, that being the general statute of limitations period for bringing a legal malpractice action. However, a "one-size-fits-all" policy may not be sufficient. For example, the statute of limitations on actions for malpractice in the drafting of a will does not begin to run until the death of the testator. Also, as noted in a recent opinion by the West Virginia bar's ethics board, there may be circumstances where it is appropriate to maintain files for a longer period of time to protect both the attorney's and client's interests, citing as examples cases involving minors ("Files pertaining to the claims of minor children ought to maintained until the child is beyond the age of majority and any statute of limitations has expired.") and tax representations, observing that such files should be maintained as long as the client is exposed to further liability in the matter The opinion also noted that some lawyers "wisely" maintain files for ten years since that is the usual statute of limitations in contract cases (as it is in Missouri on written contracts). Therefore, prior to destruction, files need to be reviewed with the idea in mind of the possible future needs of the client for the documentation in them. That is, what can arise in the future of the client's matter that could make the information in their file important? The file retention policy should be set out in the Engagement Letter or Fee Agreement. The policy should explain to the client that the file belongs to them that they may have it at any time during or at the conclusion of the representation, and how long it will be kept before destruction. It is advisable to notify the client again before destroying the file and provide final opportunity for the client to claim it. The policy should also inform the client that it is their responsibility to provide and maintain with the lawyer accurate address and telephone contact information. The file retention policy should be reiterated in the Closing Letter. Informal Opinion 20010018.
And while sending copies of pleadings, letters, etc., to the client during the representation is a good way to build positive client relations, it is not a substitute for the actual file. Regarding electronic files, the original is still the client's property. Therefore, an attorney must get the client's consent before destroying the file, even if it has been scanned into a computer or on CD-Rom. Also, it is not permissible to scan a client's original paper file onto disk, and then destroy the paper file, without first obtaining the client's permission to do so. Informal Opinion 20010147.
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