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SUPREME COURT OF ARKANSAS 

IN RE PROPOSED RULE 1.19 -

ARKANSAS RULES OF 

PROFESSIONAL CONDUCT

Opinion Delivered: June 2, 2016

PER CURIAM 

The Supreme Court Committee on Professional Conduct is recommending that the 

court adopt a new rule to address issues related to the maintenance of a client’s file and rights 

and obligations to materials contained in the file. 

We publish the rule for comment. Comments should be made in writing before 

September 1, 2016, and addressed to: Stacey Pectol, Clerk, Supreme Court of Arkansas, 

Attention: Professional Conduct, Rule 1.19, Justice Building, 625 Marshall Street, Little 

Rock, Arkansas 72201. 

Arkansas Rules of Professional Conduct 

Rule 1.19. Client Files - Definition, Retention & Destruction.

(a) Client file - Definition and duty to provide copies of client-file documents to the client. The 

use of the term “client” refers to both current and former clients.

(1) For purposes of these rules, the client file shall consist of any writings or property 

provided by the client to the lawyer and any documents, in electronic or print format, 

that are the product of the lawyer’s representation, including pleadings, correspondence, 

and other documents prepared or received by the lawyer in furtherance of the 
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representation. 

(2) The following records are not included in the client file, even if they are 

maintained by the lawyer in association with the representation and the client file, and 

such records are not ones to which the client is entitled to review or receive a copy: 

(A) The lawyer’s work product, which includes the documents the lawyer 

used to reach an end product of the lawyer’s representation, the lawyer’s notes, and 

preliminary drafts of pleadings and legal instruments;

(B) Internal memoranda prepared by or for the lawyer;

(C) Legal research materials prepared by or for the lawyer and factual research 

materials, including investigative reports prepared by or for the lawyer for use in the 

representation, unless the material has been specifically paid for by the client or procured 

by the lawyer for the client’s use; 

(D) Documents such as internal conflict checks, firm assignments, notes 

regarding any ethics consultation, or records that might reveal the confidences of other 

clients.

(E) Documents that have not been filed with a tribunal, delivered or

served, or other documents drafted but unexecuted or undelivered that the client has 

explicitly paid for the drafting or creation thereof shall be provided to the client as part 

of the file.

(3) Upon the client’s written request in any format, the lawyer shall surrender the 

client’s file to the client or, upon written authorization of the client, to the client’s new 

lawyer.
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(4) The cost of copying the file shall be the responsibility of the client, unless the 

lawyer has in his or her possession client funds to be reimbursed for such cost. If such 

funds exist, the lawyer may be reimbursed for such cost from the client funds held by the 

lawyer. A lawyer who has previously provided the client a copy of any part of the client 

file may charge the client for additional copies of the same documents. The client shall 

be responsible for the reasonable costs incurred in delivery, by mail or commercial-delivery 

service, of the client-file materials outside the lawyer’s office. After delivery of the client 

file to the client or the client’s new lawyer, the lawyer may deliver a statement for costs 

of production to the client but may not withhold delivery of the client file pending 

payment.

(5) The lawyer may, at no cost to the client, retain copies of all documents 

within the lawyer’s file for the lawyer’s purposes.

(6) The terms and conditions of the allocation of copying and delivery costs 

involved in the client file may be fixed by a written agreement between the client and 

the lawyer during the representation.

(b) Client file retention and destruction.

(1) A lawyer shall take reasonable steps to maintain the client’s file for five (5) years 

after the termination of the representation in a matter unless there are pending legal 

proceedings known to the lawyer that relate to the matter.

(2) At any time following the expiration of five (5) years following the conclusion 

of the representation in a matter, a lawyer may destroy the client’s files related to the 

matter, provided the lawyer has made reasonable efforts to provide notice to the client 
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and there are no pending legal proceedings known to the lawyer that relate to the 

matter.

(3) The providing to the client of the lawyer’s file-retention-and-destruction 

policy in any writing, including an engagement letter or agreement or termination of

representation letter, shall satisfy the notice requirement of this rule.

 (4) Notwithstanding subparagraphs (1), (2), and (3), a lawyer in a criminal matter 

shall maintain the client’s file for the life of the client if the matter resulted in a conviction 

and sentence of death, natural life, or life without parole, unless the client’s file is turned 

over to some appropriate, permanent central-file repository that maintains such criminal 

case files in compliance with this rule.

 (5) This rule does not supersede or limit a lawyer’s obligations to retain or destroy 

contents of a client’s file as otherwise imposed by law, court order, or rules of a tribunal. 

Comments:

[1] The Court has adopted a rule regarding the client file that generally follows the "end 

product" approach as discussed in Travis v. Committee on Professional Conduct, 2009 Ark. 

188. In this new rule, the Court has endeavored to balance the needs and interests of

the client with the obligations and burdens that may be placed on the lawyer and 

attempted to give basic guidance that will be used to allow the client and the lawyer to

resolve any issues or disputes that may arise in these areas without resort to the courts or

other agencies. This rule does not attempt to address all scenarios that may arise, 

especially in the area of whether the client has paid any, some, or all fees and costs 

incurred or charged by the lawyer, recognizing the differences between engagements 
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where the fee is contingent, hourly, fixed, or otherwise based.

[2] The lawyer should, at the beginning of representation and in writing, inform the 

client of the client’s rights regarding the client file, including any potential charges that 

may be associated with the lawyer’s providing the client with duplicate materials.

[3] This rule is not intended to impose an obligation on a lawyer to preserve documents 

that the lawyer would not normally preserve, such as multiple copies or drafts of the 

same document. A client’s file, within the meaning of this rule, consists of those things, 

such as papers, writings, electronic data, and property relating to the representation. 

Although the client file includes the client’s "property," the lawyer’s obligations with 

respect to some client "property" are distinct and governed by Arkansas Rule of 

Professional Conduct 1.15.

[4] The lawyer may not dispose of the client’s file if the lawyer has knowledge of any 

pending matters related to the representation. The lawyer may comply with this rule 

by maintaining the client's files in, or converting the files to, electronic form, provided 

the lawyer is capable of producing a paper version if necessary. In certain criminal 

matters, the lawyer is required to maintain the client's file for an extended period of

time, and maintaining the file in its original format may become impracticable.

[5] This rule does not affect the lawyer’s obligation under Rule 1.16 of the Arkansas 

Rules of Professional Conduct to surrender the paper and the property to which the 

client is entitled at the termination of representation or any obligation under Rule 

19 of the Arkansas Rules of Appellate Procedure –Criminal to provide existing 

copies of appellate briefs, trial records, or transcripts to convicted offenders. 
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[6] These rules do not supersede obligations imposed by other laws, court orders, 

tribunal or jurisdictional rules. These rules do not supersede specific retention 

requirements imposed by other rules or regulations, such as rules related to nonprobated wills, certain trusts, and requirements to retain original signed documents for

a period of time. If a document is subject to more than one retention requirement, 

the lawyer should maintain the document for the longest applicable period.

[7] Generally, this rule does not apply to lawyers employed by a private corporation or

other entity as in-house counsel. Those lawyers are considered employees of the 

corporation or entity, and the client's files are considered to be in the possession of the 

client and not the lawyer. In regard to lawyers employed by public defenders or legalservice organizations or governmental agencies to represent third parties under 

circumstances where the third-party client's files are considered to be files and records 

of the organization or agency, the lawyer must take reasonable measures to ensure that 

the client's files are maintained by the organization or agency in accordance with this 

rule.

[8] Lawyers are reminded that there is no statute or rule of limitation relating to when 

an attorney-discipline complaint or charge may be filed or time-barred, a factor that 

should be considered in a lawyer's determination of an appropriate file-retention-anddestruction period and policy.

[9] Lawyers are also reminded that new Rule 1.5(b)(2) now requires the use of

a written engagement or fee agreement in most representations.