Hold the Phone

by Christian Stiegemeyer, Director of Risk Management
The Bar Plan Mutual Insurance Company

An important component of The Bar Plan Mutual Insurance Company is its risk management services. The primary way in which The Bar Plan instructs attorneys in risk management techniques is through seminars.1

The Bar Plan also recognizes the need for information and assistance in handling specific, discreet risk management issues. For such times, The Bar Plan has its Risk Management Hotline where callers can avail themselves of experienced risk managers to assist them in dealing with a variety of legal malpractice and ethics issues.

What is the most often asked Hotline question? Easy. It is some variation of, "What can I do with my old files?" Herewith is the reply.

Lawyers customarily think of the files in their offices as their files. However, in its Formal Opinion 115, binding on all Missouri attorneys, the Missouri Supreme Court's Advisory Committee 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).

Formal Opinion 115 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 the client to pay the fee. However, those items for which the attorney has borne out-of-pocket expenses, such as transcripts, may be retained until the client pays for them. While Formal Opinion 115 does not mention it, the ability of a lawyer to ethically withhold such items may depend on whether there is an agreement between the lawyer and the client that the client will be responsible for paying for such items.

If the lawyer chooses to keep a copy of the file, the lawyer may copy file at the lawyer's expense.

A file must be maintained by a lawyer absent consent of the client to destroy it. Informal Opinion 950151. Files of deceased clients, or clients a lawyer cannot find, may not be destroyed, nor turned over to surviving relatives or heirs. Informal Opinion 20000211. Items in the file of intrinsic value, (an original will, stock certificates, unrecorded deeds, or any document that evidences the client's interest in money or property, for example) may never be destroyed, even if the client has given consent to destroy the file generally. 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. There is no particular period of time a lawyer is required to maintain a client file recognized in the Rules. Informal Opinion 990241.

At The Bar Plan Mutual Insurance Company, we generally recommend that files be maintained for a minimum of five years from the conclusion of the representation, that being the general statute of limitations period for legal malpractice in Missouri. However, a "one-size-fits-all" policy may not be sufficient. Prior to destruction, files should be reviewed with the idea in mind of the possible future need of the client for the documentation. Different types of representations will require different retention periods.

The file retention policy should be part of the Engagement Letter or Fee Agreement, explaining that the file belongs to the client, that they may have it at any time during or at the conclusion of the representation, and how long it will be maintained before destruction. It is advisable to notify the client again before destroying the file to provide a final opportunity for the client to claim it. The client should be advised that it is their responsibility to provide and maintain accurate address and telephone contact information with the lawyer. The file retention policy should be reiterated in the Closing Letter. Informal Opinion 20010018.

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. It is not permissible to scan a client's original paper file onto a CD-Rom, and then destroy the paper file, without first obtaining the client's permission to do so. Informal Opinion 20010147.

Endnotes

1Each year, The Bar Plan conducts three-hour Spring Risk Management seminars throughout Missouri. This year's seminar, "What Do These People Want: (And How Understanding That Can Get You What You Want)" will look at the many roles lawyers must fill in the practice and business of law, and how to develop strategies, systems and approaches in the attorney-client relationship that satisfy the clients' needs AND the lawyer's. The seminar satisfies lawyers' three-hour ethics credit for MCLE reporting and qualifies insureds of The Bar Plan for a base rate discount on their insurance premium at their next renewal. For information on how to register for a seminar near you go to www.thebarplan.com or call us at 314-965-3333 or 1-800-843-2277 and ask for Risk Management at extension 103.