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Best Practices: Record Retention
Post on May 5th, 2020
The practice of law is document intensive. You generate records with each email, phone call, pleading or transaction. How to handle these records is an evolving challenge.
There is no minimum period of time required by the Ohio Rules of Professional Conduct to maintain a client’s file. See Ohio Board of Professional Conduct Opinion 2019-6 Ethical Obligation to Deliver a Former Client’s File. However, the facts of a particular representation may require you to retain a client’s file for a certain period of time. Also, keep the statute of limitations for malpractice in mind when creating a file retention policy for your law office. See Figuring out the Statute of Limitations for Legal Malpractice.
Do not confuse client file retention guidelines with Ohio Prof. Conduct Rule 1.15(a) which requires that IOLTA records be maintained for 7 years.
The best practice is to notify the client of your firm’s record retention policy at the beginning of the representation in the fee agreement or engagement letter.
Best practice should include return of the client file to the client at the end of the representation. Not everything in the file need be returned, however. See Opinion 2010-2 which states a lawyer’s notes on ideas, impressions or questions and internal office management memos on personnel assignments or conflicts checks are not likely items to which a client is entitled, pursuant to Rule 1.16(d).
If the lawyer maintained any portion of the file on paper, it is recommended that physical documents be scanned and added to the electronic portions of the file. The “original” physical documents should be returned to the client. To avoid any future confusion or added costs, obtain a signed receipt from the client acknowledging receipt of the file, which should then be scanned and added to the digital file.
Remind clients of the firm’s retention policy in a File Closing Letter. A file closing letter is an opportunity to provide the client a specified time period within which to pick up the file.
Following a record retention policy can avoid burdensome or costly file storage. If your firm already has a backlog of closed client files, there is no better time than the present to get back on track with your record retention policy and begin contacting clients to return files.
Best Practice Tips
- Adopt and follow a records retention policy to deliver the client file at the end of representation.
In the engagement letter or fee agreement:
- Notify the client that the file and all original papers and property will be returned at the termination of representation.
- Relevant documents in the file will be kept digitally.
- Specify the length of your firm’s record retention policy and designate a future date, after which, you may destroy the file.
At termination of representation:
- Send a file closing letter
- Return the file to client
- Get receipt for return of file from client
Unless you have returned the client’s file and previously notified the client of the retention period, notify the client once the file is scheduled for destruction to allow for a last opportunity for the client to obtain the file.
As always, if you have any questions about this or any other practice issue, please do not hesitate to contact me.
Gretchen Koehler Mote, Esq.
Director of Loss Prevention
