Bar Counsel Notes: Retention of files

Your law firm has a cabinet full of files relating to just one case that was closed and finally decided six (6) years ago. The firm wants to make a space for current clients' matters and asked you to "do whatever is appropriate" to remove these files. You checked with the client who told you he has no use for these files. As a result, may you destroy those files now?

No, not yet. Under these facts, you need to wait at least another two years before disposing of files not wanted by the client. Maine Bar Rule 3.4(a)(4) requires you to retain and safeguard such client information and data for at least eight (8) years. In addition, if the files contain client records that have "intrinsic value in the particular version, such as original signed documents", those items will need to be retained for a longer period, i.e. until they are out of date and no longer of any consequence. Please refer to Advisory Opinion #187 which also deals with this file retention issue.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.