A New Year’s resolution worth considering is a well-structured File Retention Policy for your law practice. This policy will comply with legal and ethical obligations and enable you to serve your clients more efficiently. Here’s why a robust File Retention Policy is vital and the key elements it should encompass. 

What’s Included in a Lawyer’s Client File?

A comprehensive client file includes all documents and correspondence related to the client’s representation: 

• Client intake forms, executed representation agreement, and engagement letters 
• Correspondence (emails, letters, memos) 
• Client’s records, documents, reports 
• Filed pleadings, court orders, and entries 
• Notes and research related to the case 
• Settlement offers, negotiations, and rejection of acceptance of settlement 
• Executed agreements and contracts 
• Documents relating to the financial side of the representation: Fee contract, billing statements, receipts and IOLTA records 

Having all relevant information in one place ensures that the file is complete and easily accessible. Routinely save substantive or determinative digital communication and files to a designated client file in a usable file format (like a PDF). Preserve records of significant research, document review, and other due diligence for future reference. 

The Elements of a File Retention Policy

If this is your first draft of a File Retention Policy, don’t worry, it doesn’t need to be a masterpiece for the ages. The policy should be reviewed and adapted over time, and most importantly, useable and readable for your clients and staff. 

At a minimum, address the following elements in your Policy: 

1. Documents Returned to the Client 
2. Records Retained by the Lawyer 
3. Length of File Retention 
4. Disposition of File 

Each element is further discussed below.

1. Documents Returned to the Client 

At the end of your representation, returning certain documents to the client is a critical step. This typically includes: 

• Original documents provided by the client 
• Final versions of filings, agreements, or settlements 
• Any property belonging to the client 

Returning these documents not only fulfills your duty to the client but also frees up space in your records. Keep in mind that while there is no bright-line rule covering all items that must be returned to the client, the general principle is to return everything the client may reasonably need to further their case or claim. See the Ohio Board of Professional Conduct’s Ohio Ethics Guide: Client File Retention (2016) for more on this topic.  

2. Records Retained by the Lawyer 

Not all documents should be handed back to the client. Your firm must retain copies of certain records to comply with legal requirements and for future reference. These often include: 

• Copies of key correspondence and pleadings 
• Copies of the Representation Agreement, Engagement Letter, and other communication regarding scope of representation 
• Attorney work product such as notes and research documenting diligence and competence 
• Billing records, IOLTA ledgers, and payment and refund receipts 
• Written communications confirming informed consent  

Retain records to demonstrate your representation met ethical and legal standards in the event of future allegations of legal malpractice, disciplinary grievance, or fee dispute. 

3. Length of File Retention 

The length of time you retain files can vary depending on the nature of the case and statutory requirements. “The decision of how long to maintain a client file always lies within the professional judgment of the lawyer, and may be influenced by the nature and subject matter of the representation, relevant statutes of limitations [or available appeals], and potential malpractice issues.” Ohio Board of Professional Conduct Ohio Ethics Guide: Client File Retention (2016).  

Ohio Board of Professional Conduct Advisory Opinion 2019-6 states that a lawyer is not required by the Rules of Professional Conduct to maintain a former client’s file for a minimum period of time after termination of representation. But Ohio attorneys should retain client files for determined minimum lengths of time guided by the following considerations: 

• four years (the legal malpractice statute of repose in most cases),  
• five years (the required length to retain notice of lack of malpractice insurance per Prof.Cond. R. 1.4), or  
• seven years (the required length to retain IOLTA records per R. 1.15) after the conclusion of representation. However, documents of special legal significance may require longer retention periods. 

A Note on Documents of Special Legal Significance 

If a firm retains a copy of a document with special legal significance not otherwise filed or stored with a court or government office, the firm may wish to catalog that retention distinctly. Some documents hold particular importance and may need to be retained until (1) subsequent legal documents fully replace prior versions, or (2) there is no reasonable likelihood of subsequent representation or need.

In her 2021 article, “The Client File Conundrum,” Senior Counsel Amy Stone writes that certain practice areas necessitate special consideration for longer retention. These include: 

• • Probate, Trust, and Wills and estate planning documents 
  • Corporate formation documents 
  • Domestic relations documents involving juveniles or pensions 

If retained by the firm, properly categorizing and retaining these documents for an appropriate duration ensure that your firm adheres to its legal responsibilities and can respond to client needs. 

4. Disposition of the File: Destruction Process and Recordkeeping 

Once the retention period stated in the firm’s policy has expired, a clear and secure destruction process is essential. Just like clearing out old paper files, destroying digital files that are no longer needed cleans up electronic storage space and helps protect against unauthorized access to data. This process should include: 

• Ensuring the confidentiality and security of the data during destruction  
• Maintaining a record of what was destroyed and when 
• Obtaining any necessary approvals before destruction 

If a retention policy has been previously provided to a current or former client, and their file has been returned to them or reasonable efforts have been made, subsequent approval of the file’s destruction is unnecessary. However, documenting the destruction process safeguards against future disputes and demonstrates compliance with ethical standards. 

A Resolution Worth Keeping

A thoughtful and comprehensive File Retention Policy is a key component of an organized and professional law practice. As you set your resolutions for 2025, consider prioritizing the establishment or enhancement of this crucial policy. Not only will it help you remain compliant with legal standards, but it will also enhance your efficiency and client satisfaction. If you have questions, don’t hesitate to contact us to discuss further. 

Here’s to a well-organized and successful year ahead!

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.