Ethics Opinion

Opinion No. 78-6

June 1978

Summary: An attorney's duty to act competently on behalf of his clients requires him to retain "dead" files for a reasonable period of time. With regard to records relating to the handling, maintenance and disposition of all funds, securities and other properties of a client there is a specific rule providing for a 10-year period of retention.

Facts: There are over 5000 closed files in a deceased attorney's office. Some are over 25 years old. Some were kept by two other attorneys to whose practices the deceased attorney succeeded. The attorney who represents the lawyer's estate asks "whether there are any rules and/or precedents guiding the length of time an attorney or his estate is required to keep closed files."
Discussion: EC 6-1 requires a lawyer to "... act with competence and proper care in representing clients." "Proper care" with regard to the disposition of closed client files depends primarily on the nature of the matter in which the lawyer's services were rendered. For example, in the case of wills, this committee has already held that wills should be retained indefinitely (if not returned to the testator or filed in court). See Opinion 76-7.
The files should be reviewed to determine whether they need to be retained longer, and if so, for how long. The canons do not provide any specific rules on record retention but there are discussions of these questions in law office management literature. A detailed suggested table of retention times is printed in Altman, A Survey of Filing, 2 Law Office Economics Management Manual S49A, reprinted in Strong & Clark, Law Office Management 288 (1974). The matter is also discussed in Altman & Weil, How to Manage Your Law Office S10.05010.09 (1973). A local firm discussed its approach in Holmes, A Solution for Dead File Problems 4 Boston B.J. 27 (1960). The federal government annually publishes in the Federal Register an unofficial statement of record retentions required by statute.
Additionally, SJC Rule 4:01, S23, relating to bar discipline, provides that "[e]very attorney subject to this Chapter Four shall maintain complete records of the handling, maintenance and disposition of all funds, securities and other properties of a client at any time in his possession, from the time of receipt to the time of final distribution, and shall preserve such records for a period of ten years after final distribution of such funds, securities or other properties, or any portion thereof."
SJC Rule 4:01, S23 has been amended and is now incorporated as part of Rule 3:07, DR 9-102(B)(3).

Permission to publish granted by the Board of Delegates, 1978. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.