June 12, 1983
A lawyer may not destroy closed files indiscriminately by checking the closing date on the file and disposing of all files closed in excess of a particular number of years. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the guidelines set forth.
A law firm is proposing the destruction by burning of all closed files more than 6 years old to alleviate storage problems. This would be done indiscriminately by checking the closing date on the file and disposing of all files closed in excess of 6 years. ABA Informal Op 1384 deals with this question and states:
"A lawyer does not have a general duty to preserve all files permanently. Mounting an substantial storage costs can affect the cost of legal services, and the public interest is not served by unnecessary and avoidable additions to the cost of legal services.
"But client (and former clients) reasonably expect from their lawyers that valuable and useful information in the lawyers' files, and not otherwise readily available to the clients, will not be permanently and carelessly destroyed, to the clients' detriment.
"The Code of Professional Responsibility does not set forth particular rules or guidelines on the subject. This Committee had not previously issued an opinion that deals directly with the subject.
"We cannot say that there is a specific time during which a lawyer must preserve all files and beyond which he is free to destroy all files.
"Good common sense should provide answers to most questions that arise.
"With the foregoing limitations in mind, we suggest the considerations set forth below.
Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or in behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records.)
A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client's position in a matter for which the applicable statutory limitation period has not expired.
A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.
In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention that do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.
A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer's receipt and disbursement of trust funds.
In disposing of a file, a lawyer should protect the confidentiality of the contents.
A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.
A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.
In response to this inquiry and in light of these guidelines, a lawyer may not destroy files indiscriminately, as proposed, by checking the closing date on the file and disposing of all files closed in excess of a particular number of years. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters as set forth above.