December 17, 1991
Where client files in a lawyer's custody are damaged by fire, flood, or other circumstance beyond the control of the lawyer, and the retention period communicated to the client has not yet expired, or where the lawyer has failed to establish a record retention plan or has failed to communicate the plan to the client, the lawyer should make reasonable efforts to notify those clients affected.
Unless there is some unique circumstance which necessitates the restoration of a portion of the file, the lawyer's notice to the affected clients may advise that the damaged file will be destroyed unless the client wishes the return of the damaged file.
References: MRPC 1.6, 1.15, 5.1; R-5, R-12.
As the result of a fire in its building, a law firm sustained serious water damage to some of its closed client files. The damaged files, which had been closed for periods ranging from six months to 20 years, were rendered illegible and can only be restored to usable condition by an elaborate rejuvenation process at a cost of approximately $800.00 per cubic foot of files.
The law firm's record retention plan provides that the client receive copies (or originals) of all file materials with the exception of confidential psychological evaluations, that the file be kept readily available for 90 days, and thereafter the file be stored for three years. The firm has retained copies of all deeds, wills, trusts, powers of attorney, judgments of divorce, etc., and other important papers in a protected area unaffected by the fire.
The issue is whether the law firm may ethically dispose of the damaged client files and, if so, under what conditions.
The ethical considerations governing retention and eventual disposition of closed client files under normal conditions are codified in MRPC 1.6 and 1.15. MRPC 1.6 relates to the protection of the confidentiality of information provided by a client, while MRPC 1.15 provides for the safekeeping of client property. R-5, interpreting MRPC 5.1, clearly established the lawyer's duty to have in place a plan or procedure governing safekeeping and disposition of client property, including destruction of representation files. The opinion warns that the lawyer may not unilaterally destroy or discard items that clearly or probably belong to the client. See, R-12.
R-12 recognizes the following dichotomy vis-a-vis record retention policy, based upon the fact that prior to the October 1, 1988 adoption of the Michigan Rules of Professional Conduct, law firms were not required to have formal record retention policies:
"Therefore, as to those representation files closed on or after October 1, 1988, a lawyer shall preserve records of client property for a period of at least five years after termination of the representation [MRPC 1.15(a)], and shall give each client notice regarding disposition of the client's representation file either when the lawyer-client relationship is established or at the conclusion of the representation matter.
"As to those files closed prior to October 1, 1988, a lawyer shall make reasonable efforts to obtain client input regarding disposition of the file and its contents before client property is destroyed. If reasonable efforts have been made to obtain the client's input and the client fails to respond or cannot be located, the lawyer must determine on a case by case basis whether the lawyer has done enough to permit destruction of the file in the absence of the client's input." Emphasis provided.
Where, as here, circumstances beyond the law firm's control have rendered closed client files illegible, and restoration costs are prohibitive, the ethical principles must be interpreted pragmatically. We believe the following procedure is ethically required under the present circumstances:
- Where the law firm has in place a record retention plan which adequately protects the property of the client, the client has been advised of the client's rights under the retention plan, and the client has either exercised the opportunity to retrieve the file or the time to exercise the option has expired under the retention plan, the firm owes no further duty of notice to the client nor is the firm required to restore the damaged files.
- Where the retention period communicated to the client has not yet expired, or where the law firm has failed to establish a record retention plan or has failed to communicate it to the client, the law firm should make reasonable efforts to notify those clients affected that the closed file has been damaged to the point of illegibility, that restoration costs are prohibitive, and that the lawyer will therefore dispose of the file unless the client requests that it be delivered to the client in its present condition. The client should be afforded an opportunity to identify any unique and otherwise unavailable item which the client seeks to be restored.
- Reasonable efforts to contact clients vary case by case, but minimally require notice to the client by regular and certified mail, addressed to the client's last known address.
- If reasonable efforts have been made to obtain the client's input and the client does not respond or cannot be located, the file may be disposed of under the supervision of the lawyer in a manner that safeguards the confidences of the client.
- If the lawyer is aware of specific circumstances which necessitate the retention of a particular file, the lawyer must retain it, and if necessary, have it restored.
In summary, where closed client files have been damaged by circumstances beyond the control of the law firm to the point of illegibility and restoration costs are prohibitive, and the client's rights under the law firm record retention plan have not expired, the law firm must make reasonable efforts to contact each client, notifying the clients of the damage and proposed destruction of the file unless the client instructs otherwise. If reasonable efforts have been made to obtain the client's input and the client fails to respond or cannot be located, the lawyer may dispose of the file in a manner that safeguards the confidences of the client. If the lawyer is aware of specific circumstances which dictate retention of a particular file, it must be preserved and, if necessary, restored at the lawyer's expense.