Introduction

Every lawyer in private practice is ethically required to have a file retention policy.^[1] Creating a policy has many facets as there is no specific file retention period in the Michigan Rules of Professional Conduct (MRPC). Further, policies should be customized to address the specific needs of each law firm and its clients.^[2] The goal of this Record Retention Kit is to provide clear guidance on how to create an effective record retention policy (RRP) to fit the needs of your law firm.

Initial Steps Before Creating or Modifying a Policy

Policy Components

Review Ethics Opinion R-5. This ethics opinion provides that, at a minimum, the policy should include:

Instructions to lawyer and non-lawyer personnel concerning their obligations under the policy;
Information concerning the location where files are stored, either physically or electronically;
Methods for the eventual disposition of records and files;
Information concerning retention periods and the establishment of retention periods;
A system for monitoring lawyer and non-lawyer employee compliance with the plan; and
Information relating to the proper disposition of records when the record retention period has expired.

Additionally, the policy should include how it will be communicated to clients. This may be part of the fee agreement, provided as a standalone document, or otherwise.

Contact your Malpractice Insurance Carrier

If you have malpractice insurance, you should contact your carrier for additional information and advice when drafting the firm’s record retention policy. Many have guidelines and resources beyond what is contained in this toolkit, including sample policies.

Review Case Types

The determination of how to store and how long to keep files often depends on the nature of the representation. For example, a file for a client regarding a traffic ticket may be kept for less time than an in-depth tax matter, which may require a lengthier retention under tax law.

Identify and Classify Records

What records must and should be preserved?

Client’s Right to Access
MRPC 1.16(d) provides "Upon termination of representation, a lawyer should take reasonable steps to protect a client's interest, such as surrendering papers to which the client is entitled . . . The lawyer may retain papers related to the client to the extent permitted by law."

The parts of the file to which the client is entitled is a legal question. However, when the file is closed, all client property should be returned including original documents. R-5 provides the following guidance: “Those items that should be retained include those which the lawyer knows or should know may still be necessary to the assertion or defense of the client's position in a matter for which the applicable statutory limitation period has not expired; information that the client may need, has not previously been given to the client, is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer; accurate and complete records of the lawyer's receipt and disbursement of trust funds.” Further, it provides that a lawyer should not “unilaterally destroy or discard items that clearly or probably belong to the client.” See also Ethics Opinion R-12.

Ethics Opinion R-19 supersedes portions of RI-5 by providing updated guidance to determine who owns certain records in the client file. According to RI-19, this determination is a matter of law, rather than ethics. The opinion indicates that the client is entitled to return of any client property, original documents, and those documents with independent legal significance; however, other documents, including pleadings and attorney work product, are the property of the attorney. To address these issues with the client, the opinion recommends that “issues relating to file ownership and access, copy charges for information requests, and file destruction practices be described by the lawyer to client in the terms of engagement or some other appropriate disclosure.”

Consider whether the client has access to the documents through another source such as the court or tribunal where the matter took place. For example, in an estate planning matter (if there are no questions of competency) has the original will been sent to the probate court for safekeeping? For Social Security and workers’ compensation matters, are there other sources that retain these documents?

Other Considerations
Consider whether there are statutes, court rules, or administrative orders requiring retention of certain materials for a specified time period. It is also important to maintain all records that may assist in defending a malpractice suit or a grievance.

What records may be destroyed?
Not all documents in the file must be retained. Anything without legal significance, copies, research, administrative notes, drafts, notes of no significance, and similar items may be removed from the file upon closing.

How long should a file be kept?
This is a question of contract between the lawyer and the client. However, in developing the policy, the lawyer may wish to set different dates for different types of matters.

General Considerations Include:

Statute of limitations and statute of repose for legal malpractice claims that may arise.
MRPC 1.15 requires that lawyer trust account records be maintained for five years.
The relationship with the client, to ensure the file is available in the event of an ethics complaint, which is another important reason for implementing a consistent document retention policy.^[3]

Specific Considerations Include:

Immigration matters
Business incorporation negotiations
Estate planning matters
Guardianships, Conservatorships, and Trusts
Divorce with minor children
Abuse and Neglect Files
Files involving minors
Spousal maintenance
Prenuptial agreements
Tax related matters
Business incorporation documents
Business documents such a meeting minutes, corporate records books, etc.

Disclaimer: This is not an all-inclusive list and attorneys need to determine what makes sense depending on the type of case.

Storage

Physical files must be stored in a secure place with adequate protections to prevent access by anyone who is not bound by the lawyer’s ethical obligation to ensure client confidentiality in compliance with MRPC 1.6.

Storing physical files can be difficult especially when lawyers have limited space and/or resources. Physical files may be converted to electronic files, without notice to the client, as long as an electronic copy is stored for the timeframe set forth in the retention policy. Ethics Opinion R-12. At the end of representation, many lawyers digitize the documents and destroy the physical file as part of the closure process. When digitizing the records, the integrity of the documents should be retained by preventing editing of some documents and preserving information such as when and by whom the document was created and changed.^[4] Another consideration is the ability to access the documents easily within the retention period. Lawyers should periodically check digitized files to ensure that all files are up-to-date, accessible, and readable.^[5]

Destruction Policy Considerations

While no specific rules related to proper destruction of client files exist, lawyers should use a secure, protected form of destruction as appropriate. For physical files, the lawyer may destroy them personally, observe the shredding, or obtain a copy of the shredding company’s policies that ensure confidential destruction of files. For electronic files, the lawyer should review current options for complete and secure deletion of the digital files.

Notice Requirements

Ethics Opinion R-12 requires notice be given to a client regarding the disposition of their client file when the lawyer-client relationship is established or at the conclusion of the representation matter. If this notice has been provided, no additional notice is necessary at the time the retention period expires. If notice has not been provided, a client must receive a notice and be given a reasonable time to request information from the client file prior to its disposition.

Reference Materials

A Sound Record Retention Policy
Creating a File Retention and Destruction Policy — CAN Professional Counsel
Develop a Client Record Retention Policy for the Law Office — ICLE (membership required)
Sample Law Office File Retention/Destruction Policy — New York State Bar Association
File Retention: A Malpractice Insurance Company’s Perspective — Minnesota Lawyers Mutual
How to Handle Requests for Copies, Dawn M. Evans
Disposition of Client Files, Catherine M. O'Connell
Focus on Professional Responsibility, Ownership of Lawyer’s File About Client Representations — Who Gets the Original? Who Pays for the Copies?, Vol. 79 No. 8 Michigan Bar Journal 1062 (Aug. 2000)
Focus on Professional Responsibility, Break Away Lawyers, Vol. 77 No. 10 Michigan Bar Journal 1078 (Oct. 1998)

Ethics Opinions

R-5 Duty to Establish Retention Plan
R-7 Trust Account Guidelines
R-12 Notice to Clients, Microfilm
R-19 Client Request for Copy of File
RI-86 Availability of Files to Client
RI-100 Retirement
RI-109 Damage to Files
RI-178 Lawyer Referral Services
RI-240 Disposition of Older Files

Sample Record Retention Policy WORD
Sample Fee Agreement Clause WORD
Sample File Closing Letter WORD

References

^[1] See Ethics Opinion R-5.

^[2] A generic sample policy may be found in Appendix II.

^[3] There is no statue of limitation on filing a grievance with the Attorney Grievance Commission.

^[4] Creating a Record Retention & Destruction Policy: A CNA Professional Counsel Guide for Lawyers and Law Firms

^[5] With changing technology, the format in which documents are stored may need to be updated periodically. For example, files stored on microfiche are no longer easily accessible.