There is no one safe answer that applies to all files, regardless of importance or contents. An attorney has a continuing responsibility for client property that he or she holds, and that extends to original client documents that the attorney may for some reason have in his/her possession. Therefore, unless the attorney is willing to guarantee the safekeeping of these original documents, at the outset of the case, they should be copied and returned to the client, with the attorney retaining copies.

All material in files needs to be analyzed for importance and dealt with accordingly. Often at the close of a matter much of what is in the file is duplicated elsewhere (copies of related briefs or opinions) or may simply be “scratch” notes, and this can be destroyed. Material that might be helpful for future research may be copied or moved to a “brief bank” location. The remainder must be analyzed in terms of such things as whether the matter may re-open (when do all applicable statutes of limitation expire?), malpractice, statutory or business reasons for retaining information longer than usual, and so on.

The Florida Bar has no official guidelines for retention and destruction in place that apply to all files (other than regulations stipulating that trust accounting records, contingency fee agreements and closing statements, and statement of insured client’s rights must be maintained for a minimum of six years).

If you have specific questions that cannot be resolved through the below listed Ethics Opinions or Rules, please contact the Bar’s Ethics Hotline at 800.235.8619 for further assistance.

Here are all the Ethics Opinions and Rules regarding closed files:

• Store files electronically 06-1
• Dispose of clients’ files 81-8
• Written inquiry should be sent requesting the clients’ advice as to their wishes in disposing of their files 71-62
• The length of time a lawyer’s files should be maintained 63-3
• Limitation on Time to Bring Complaint Rule 3-7.16
• Before a lawyer enters into a contingent fee contract for representation of a client Rule 4-1.5(f)(4)(C)
• In the event there is a recovery, on the conclusion of the representation, the lawyer must prepare a closing statement reflecting an itemization of all costs and expenses Rule 4-1.5(f)(5)
• Representation of Insureds Rule 4-1.8(j)
• Maintaining Copies of Advertisements Rule 4-7.19(j)
• Minimum Trust Accounting Records Rule 5-1.2(b), (c), (d) & (f)

Other Relevant Opinions:

• Cost of copying file 88-11 Rec, 00-3
• Disposition
  • Associate leaving firm 93-4
  • Closing law practice 74-43, 77-1
  • Deceased attorney’s files 74-43
  • Partner withdrawing from firm 69-1
• Electronic records 10-2, 12-3
• Property of lawyer rather than client 88-11, 88-11 Rec
• Retaining liens 71-57, 88-11, 88-11 Rec
• Technology, use of 10-2, 12-3

Know the Rules:

• Rule 4-1.5(f)(5) requires that lawyers retain copies of executed contingent fee contracts and executed closing statements in contingent fee cases for 6 years after the execution of the closing statement in each contingent fee matter.
• Rule 4-1.8(j) states that lawyers who are paid by insurance companies to represent insureds must retain a copy of the Statement of Insured Client’s Rights that the lawyer has certified was sent to the client for 6 years after the matter is closed.
• Rule 5-1.2(f) states that a lawyer or law firm that receives and disburses client or third-party funds or property must maintain the client trust account records required by this chapter for 6 years subsequent to the final conclusion of each representation in which the trust funds or property were received.

Some factors to consider when disposing of client files:

• A lawyer should preserve an index or identification of the files that the lawyer has destroyed or disposed of. You can attach the dated receipt from the shredding service to the list of destroyed files.
• Authority to dispose of a file should be obtained from a client whenever possible, so a diligent attempt should be made to contact all clients and determine their wishes.
• Absent client authority to dispose of files, an attorney should individually review files and be satisfied that no important papers of the clients are contained in the file before destruction.

Frequently Asked Ethics Question:

Question: How long must I retain closed files?

Answer: With the exception of trust accounting records (6 years), contingent fee contracts and closing statements in contingent fee cases (6 years), there is no specific number of years for which lawyers are required to keep closed files. Similarly, there is no set time period after which closed files may summarily be destroyed. The Professional Ethics Committee has stated that the appropriate length of time to keep a file depends on such factors as the nature of the case and the type of material found in the file.

The committee, however, has established guidelines for lawyers who wish to dispose of closed files. The lawyer should first attempt to contact the clients and obtain their directions regarding disposition of the files. If the lawyer is unable to contact a particular client, the lawyer should review that client’s file and remove any original documents or important papers (e.g., wills, contracts) that might later be vital to the client’s interests. Any such papers must be indexed and retained for a reasonable length of time. The lawyer may then dispose of the remainder of the file. When disposing of the file, reasonable care should be taken to protect client confidentiality. Opinions 81-8, 63-3.

[Note: Rule 5-1.2(f) of the Rules Regulating The Florida Bar requires that trust accounting records must be retained for at least six years after conclusion of the representation. In addition, Rule 4- 1.5(f)(5) requires that a copy of the written fee contract and closing statement in contingency fee cases be retained for six years after the execution of the closing statement, and Rule 4-1.8(j) requires that a copy of the signed statement of insured client’s rights be retained for six years after the representation is completed.]

To review the complete list of Ethics Informational Packets, including the packet on Closed Files, please select this link: Ethics – Informational Packets.

Additionally, you can browse the Ethics Department’s complete Subject Index of Ethics Opinions for further guidance on other topics.

Other Resource

• Records Management, Retention, and Destruction Guide

VIEWS AND CONCLUSIONS EXPRESSED IN ARTICLES HEREIN ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF FLORIDA BAR STAFF, OFFICIALS, OR BOARD OF GOVERNORS OF THE FLORIDA BAR.