Opinion #201. Client File Retention Responsibilities Where an Associate Attorney Leaves a Law Firm
Issued by the Professional Ethics Commission
Date Issued: November 1, 2010
Bar counsel asked the Commission to render an opinion concerning client file retention responsibilities where an associate attorney leaves a law firm. The question presented is: Is the departing attorney or his/her former law firm responsible to retain clients’ files for eight years under M. R. Prof. Conduct 1.15?
M. R. Prof. Conduct 1.15(f) applies when representation ends. It requires attorneys to either “return to the client or retain and safeguard in a retrievable format all information and data in the lawyer’s possession to which the client is entitled.” Files that are retained must be safeguarded for at least 8 years. The rule provides only that “a lawyer, or a lawyer’s successor” is the responsible party, without earmarking that responsibility to either the attorney who handled the client’s case or the attorney’s law firm.
Many law firms will have policies and/or employment contracts which shed light on and often resolve these issues. When they do not, it is up to the departing involved attorney who takes files and/or leaves files behind to clarify retention responsibility and notify the affected client(s) of his/her departure and the resulting location of the client’s files. Factors which may address the determination of responsibility are too numerous to allow for one set rule. Rule 1.15(f) is clear that the duty to either return or retain files applies only to information and data “to which the client is entitled.” While the departing attorney and/or the departing attorney’s law firm may each wish to retain file information for their own purposes or protection, the attorney’s ethical duty is for the benefit of the former client and his or her right of access to file information. Hence, whether this is accomplished through retention by the departing attorney, the firm, or both, the location of the information must be clearly communicated to the client.