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New Year Closed File Purge
Post on January 5th, 2022

The turn of the calendar to a new year may inspire lawyers to clean house by purging old client files.  If you are so inspired, consider the following:

  • Are the documents to be purged records of client funds or client property held by you?

Prof.Cond.R. 1.15 requires that lawyers preserve records of client funds and other property held by the lawyer for seven years after the termination of the representation or the disbursement of the funds or property, whichever comes first.  Be aware that these records include fee agreements.

  •  Are the documents to be purged original client files?

The client’s file is the property of the client and should be returned to the client at the conclusion of the representation. If the client chose to leave the original file with you, the client should be made aware of the date when the original file will be destroyed. If the lawyer has maintained the original file, the lawyer should take reasonable efforts to inform the client before destroying the file.

The best practice is to address return of the original file and your firm’s policy for file retention and destruction at the beginning of the representation in the fee agreement or engagement letter with an acknowledgement signed by the client. The file closing letter should also let the client know the date when the file will be destroyed if not retrieved.

  • Do the documents to be purged contain information that would help you defend against a disciplinary complaint or legal malpractice claim?

The Rules of Professional Conduct do not require that a lawyer preserve the client file beyond those records covered by Rule 1.15. We recommend that you retain a copy of the client file before returning or destroying in accordance with your file retention policy. As it is not easy to predict which clients may come back to haunt you through a disciplinary complaint or legal malpractice claim, scan and save the portions of your file that will establish decisions made by the client, waiving of options by the client, and generally any CYA letter pertinent to the representation. As our claims department attests, letters, e-mails, texts, notes, and billing records can be helpful, if not instrumental, in defending malpractice claims.

These copies do not need to be preserved indefinitely.  Consider the nature of the representation, the statutes of limitation and the statute of repose in determining how long to preserve the copies.

  • What about electronically stored data?

Don’t stop at paper documents once you have identified the material that is safe to purge. Purge electronically stored data as well. Purging electronic data helps to reduce the risk that a cyberattack will put sensitive former client information in the hands of unauthorized third parties. It can also reduce your data storage expenses.

  • Have you made a record of your destroyed files?

The Office of Disciplinary Counsel recommends that you maintain a record of destroyed files. We recommend that the record include the name and contact information for the client, the names of any opposing parties, a brief description of the matter, the date that the representation terminated, and the date that the file was destroyed. See the attached form example.

 If you have more questions about file retention, here are some additional resources:

As always, if you have any questions, please contact us. We are here to help.

Gretchen Mote, Esq
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct:  614-572-0620
Email: [email protected]
Monica Waller, Esq.
Senior Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
Direct:  614-859-2978
Email: [email protected]