EXHIBIT B 

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CLIENT FILE RETENTION

Board of Professional Conduct of The Supreme Court of Ohio

OHIO ETHICS GUIDE

© 2016 Board of Professional Conduct, The Supreme Court of Ohio

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Confidentiality of Files

What must be kept confidential?

Maintaining the confidentiality of client files is a 

duty imposed upon lawyers by Prof.Cond.R. 1.6. An 

important step toward complying with this duty is 

the maintenance of a paper or digital filing system 

with access limited only to authorized personnel.1 

Confidentiality is further ensured by the 

requirement in Prof.Cond.R. 1.15 to identify and 

segregate the client file from the lawyer’s property, 

and from the property of other clients and third 

persons. Equally important, a lawyer must use 

“reasonable efforts to prevent the inadvertent or 

unauthorized disclosure” or access to a client’s file 

regardless of whether it is maintained in paper or 

digital format.2 

Ohio’s Client File Retention 

Requirements

How long must a lawyer maintain a closed client’s file? 

The Rules of Professional Conduct do not 

prescribe a minimum period of time for the 

retention of client files, nor is a lawyer required 

to permanently preserve all files of current or 

former clients.3 It is nearly impossible to establish 

a minimum retention period for client files that 

applies in all circumstances. The decision of how 

long to maintain a client file always lies within the 

professional judgment of the lawyer, and may be 

influenced by the nature and subject matter of the 

representation, relevant statutes of limitations, and 

potential malpractice issues. 

NOTE: Ethics Guides address subjects on which the staff of the Board of Professional Conduct receives frequent inquiries from the 

Ohio bench and bar. The Ethics Guides provide nonbinding advice from the staff of the Board of Professional Conduct and do not 

reflect the views or opinions of the Board of Professional Conduct, commissioners of the Board, or the Supreme Court of Ohio.

Client File Retention

Lawyers are required to comply with a number of ethical and legal obligations related 

to client files and property. Applicable Rules of Professional Conduct include: 

• Prof.Cond.R. 1.1

A lawyer shall provide competent 

representation. 

• Prof.Cond.R. 1.3

A lawyer shall act with reasonable 

diligence and promptness.

• Prof.Cond.R. 1.4

A lawyer shall communicate with a client 

and comply promptly with all of a client’s 

reasonable requests for information. 

• Prof.Cond.R. 1.6

A lawyer shall keep a client’s confidences. 

• Prof.Cond.R. 1.15

A lawyer shall safeguard the property 

of the client. 

• Prof.Cond.R. 1.16(d)

A lawyer shall, upon termination of 

representation, take reasonable steps 

to protect a client’s interests including 

surrendering all papers and property to 

which the client is entitled.

At some point, most lawyers face the question of “What do I do with client files that are 

closed and dormant?” How long should the lawyer retain a client file? What documents in 

the file are required to be maintained by the lawyer? Which contents of the file belong to 

the client? Can the contents of the file be electronically scanned and then destroyed? What 

do the Rules of Professional Conduct require? 

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However, lawyers should always be mindful of two 

time periods for document retention required by 

the Rules of Professional Conduct:

• The notice signed by the client stating 

that the lawyer does not maintain 

liability insurance must be kept for five 

years after termination of representation 

(Prof.Cond.R. 1.4); and

• IOLTA/trust account records shall 

be kept by lawyer for seven years after 

termination of representation 

(Prof.Cond.R. 1.15).

Despite the lack of minimum file retention 

requirements in Ohio, other jurisdictions suggest 

client file retention periods that run concurrently 

with IOLTA/trust account recordkeeping 

requirements. In these situations, a lawyer 

maintains both the required trust account and 

financial records and the underlying client file for 

the entire IOLTA retention period, i.e. seven years. 

Although maintaining client files for the duration 

of the IOLTA retention period may be appropriate 

in many cases, certain client matters may require 

a longer or possibly an indefinite period of 

retention. For example, files related to minors, 

probate matters, estate planning, tax, criminal 

law, corporate formation, business entities and 

transactional matters should be retained until 

the files no longer serve a useful purpose to the 

current or former client. Consequently, a careful 

and particularized review of each client file, and 

the establishment of a specific file retention period 

for the file, may be necessary with regard to some 

matters. See also Client File Retention Policy, page 4.

What are Client Papers and Property? 

Certain documents in a client file are subject 

to surrender at the request of the client. Client 

property traditionally includes documents 

provided to the lawyer by the client.4 Although 

Prof.Cond.R. 1.16(d) applies to a situation in 

which the representation of a client is terminated 

prior to completion, whether by the client or the 

lawyer, the rule’s definition of “client papers and 

property” can provide guidance useful in the 

context of client file retention. The rule states 

that “‘client papers and property’ may include 

correspondence, pleadings, deposition transcripts, 

exhibits, physical evidence, expert reports, and 

other items reasonably necessary to the client’s 

representation.”5

The Board also has further held that “papers and 

property to which the client is entitled” to receive 

includes, but is not limited to materials acquired or 

prepared for the purpose of representing the client 

and other materials that might prove beneficial 

to the client, such as significant correspondence, 

investigatory documents, reports for which the 

client has paid, and filed or unfiled pleadings and 

briefs.6

Are a Lawyer’s Notes and Related Documents 

Considered Client Property? 

A client is not entitled to all materials possessed 

by the lawyer in the client file, such as the lawyer’s 

work product. However, the lawyer’s ethical 

obligations may “give [] rise to an entitlement to 

those materials that would likely harm the client’s 

interest if not provided.”7 For example, a lawyer’s 

notes regarding facts about the client’s case, as well 

as any notes regarding legal theories, strategies, 

and analysis, may be reasonably necessary to the 

client’s representation.8

Among the items in a client file that may not 

be items reasonably necessary to a client’s 

represenation and thus not client files or papers 

are:

A lawyer’s notes “to himself or herself 

regarding passing thoughts, ideas, 

impressions, or questions will probably 

not be items reasonably necessary to a 

client’s represenation;”9 

A lawyer’s notes, research, firm 

documents, internal memoranda 

generated for a lawyer’s own purposes;10 

and 

“Internal office management 

memoranda such as personnel 

assignments or conflicts of interest 

checks.”11

CLIENT FILE RETENTION 3

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Client File Retention Policy

A lawyer should adopt and consistently follow a 

client file retention policy. Such a policy should 

meet the needs of the lawyer’s practice and 

comply with the Rules of Professional Conduct. A 

retention policy should include the step-by-step 

details necessary for the lawyer to close and store 

the client file, transfer the file to the client, a third 

party or subsequent lawyers, and eventually destroy 

the file. The policy also should address document 

review processes and procedures, IOLTA records, 

backup and archival procedures of digital and 

paper documents, the designation and duties of 

a firm client file custodian, and the creation of a 

destroyed client file register. 

In developing a retention policy, a lawyer should 

consider the nature of his or her practice and the 

types of client materials that come into his or her 

possession. A different retention period may be 

required for each area of the lawyer’s practice. 

For example, a corporate practice may require 

the retention of closed files for the life of the 

corporation; a collections practice may require a 

retention period until a judgment can no longer 

be revived; and a practice that includes cases 

involving minors may require retention beyond 

the age of majority. The separate retention period 

established for each practice area or matter type 

should be described in the firm’s retention policy.

Even if a lawyer concentrates his or her practice in 

a single area of the law, the retention policy may 

need to distinguish between different case types 

within that area of practice. For example, a lawyer 

practicing domestic relations law would likely 

need to establish a longer file retention period for 

divorce cases involving minor children compared 

to the dissolution of a marriage with no children 

retention period until a judgment can no longer 

be revived; and a practice that includes cases 

involving minors may require retention beyond 

the age of majority. The separate retention period 

established for each practice area or matter type 

should be described in the firm’s retention policy.

Notice to Clients

At the beginning of the representation, the lawyer 

should notify the client, in writing, of the general 

provisions of the firm’s file retention policy. This 

is best accomplished through a statement in 

the initial engagement letter or fee agreement 

explaining when the file will be returned to the 

client. It is also acceptable and strongly advised 

that the lawyer provide the client with copies of 

correspondence, pleadings, deposition transcripts 

and expert reports during the representation to 

keep the client reasonably informed as well as to 

comply with requests for information as required 

by Prof.Cond.R. 1.4(a)(3)-(4).12 The release of 

materials to the client during representation does 

not relieve the lawyer of obligations to maintain 

a complete client file or to turn over documents 

upon request. 

The closing letter at the conclusion of 

representation should include a recitation of the 

firm’s file retention policy and the date when the 

file will be destroyed. The letter should allow the 

client a reasonable period of time to request a copy 

of his or her file before it is destroyed. 

4 OHIO ETHICS GUIDE

The following is a sample statement in 

an initial engagement letter, regarding 

the final disposition of the client’s file:

The firm will maintain your file for ______ 

years after the date of the file closing letter. 

After that date, the file and all of its contents 

will be permanently destroyed. You may 

request your file and all of its contents at any 

time before the date of destruction.

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CLIENT FILE RETENTION 5

A file retention policy, explained in both the initial 

engagement and file closing letters, gives the client 

sufficient notice of the length of time the file will 

be retained and that it may not be kept indefinitely 

by the lawyer. A retention period for the client 

file should take into consideration the statute 

of limitations to bring claims against the lawyer 

or any retention period required by the lawyer’s 

malpractice carrier. Special attention should 

also be given to the Ohio’s discovery rule and its 

application to legal malpractice matters when 

establishing a file retention policy.13 

A retention policy may still be adopted even 

after lawyer has been in practice for a significant 

period of time. When implementing a policy 

after accumulating flies for years or even decades, 

the lawyer should set a date for implementation 

and draft a letter to current and former clients 

detailing the retention policy, dates for file 

destruction, and the time period the client may 

request and obtain their file. 

Closing and Transmittal 

of the Client File

A lawyer is required to take reasonable steps to 

protect the client’s interest when a client file is 

closed at the end of representation.14 This duty 

applies regardless of the reason for the termination 

of the representation. 

A lawyer should take certain steps when closing a 

client file: 

Determine that the matter has 

concluded (e.g., file contains a dismissal 

entry, satisfaction of judgment, lease 

termination, etc.) and personally 

inventory the file to determine its 

contents; 

Determine which documents the client 

is entitled to receive; 

Determine whether the file contains 

other client property, such as, items 

provided by the client and original 

documents: wills, powers of attorney, 

advance healthcare directives, other 

executed estate planning documents, 

cash, bonds, negotiable instruments, 

deeds, official corporate or other 

business and financial records, and 

settlement agreements produced 

during the representation; and 

Cull, at the lawyer’s discretion, publicly 

available documents such as pleadings 

and briefs, hard copies of transcripts 

available digitally, and work product 

(e.g., internal firm correspondence, 

drafts of documents, and lawyer’s 

notes.) 

When the client file is transferred to the client 

at the end of representation, a letter listing the 

general contents of the file should be prepared 

with a receipt to be signed by the client. Clients 

should be encouraged to pick up the file from 

the lawyer’s office whenever possible. A lawyer 

should maintain a copy of the signed receipt with 

his or her copy of the client file. Files mailed at 

the client’s direction should be sent by certified 

mail. If the client directs the lawyer to send the 

file to a third party or another lawyer, the request 

should be made in writing with a signed release 

to transfer the file. If the location of the client is 

generally unknown, it is advisable to withhold all 

original documents or client papers for transmittal 

until the client’s address is confirmed or the client 

contacts the lawyer. A lawyer may not charge the 

The file closing letter may contain language 

similar to the following:

Under the firm’s file retention and 

destruction policy, your file will be kept for 

______ months/years from the above date 

after which time the file will be permanently 

destroyed. You may retrieve your file and 

its contents at any time prior to the date of 

destruction.

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6 OHIO ETHICS GUIDE

client for providing the file or making copies of the 

file.15 Charging a client a separate fee to store his/

her file during any retention period is discouraged 

unless the expense was previously agreed upon in 

writing.16 

Destruction of Retained Files

A file may be destroyed at any time with the client’s 

consent. However, it is a best practice for a lawyer 

to retain either a paper or scanned copy of the file 

for the duration of the firm’s file retention period. 

Even if the client previously has been advised of 

the file retention period, it is a best practice to 

send a final file destruction notice to the client 

before any client files are destroyed.

The file destruction notice should be sent to 

the last known address of the client. A lawyer 

is required to take reasonable steps, but not 

extraordinary measures, to locate missing 

clients.17 For example, contacting known family 

members, placing a notice in a newspaper of 

general circulation, or a search of commonly used 

electronic databases, social media, or the internet 

are considered reasonable efforts to locate a client. 

The lawyer should document all efforts undertaken 

to locate the client. 

Lawyers are not required to send a file destruction 

notice by certified mail, but unique circumstances 

may warrant the use of this method. For example, 

the use of certified mail may be prudent when a 

client has made contact with the firm requesting 

to pick up a copy of the file prior to its destruction, 

but has failed to do so after a reasonable period of 

time. 

Each file that is scheduled to be destroyed should 

be reviewed again by the lawyer. A lawyer should 

use care not to destroy or discard information 

that the “lawyer knows or should know may still 

be necessary or useful in the assertion or defense 

of the client’s position in a matter for which the 

applicable statutory limitations period has not 

expired.”18 This will require a lawyer to consider all 

relevant statutes of limitations, substantive law, and 

the nature of the client’s case before destroying 

the client’s file. If a client cannot be located, but 

the file contains property owned by the client, it 

should be “segregated and preserved.”19

Although the Rules of Professional Conduct 

do not prescribe any particular method for the 

destruction of client files, a lawyer is obligated 

to maintain client confidentiality even after 

the representation terminates, including when 

disposing of a client’s file.20 Cross-hatch shredding 

or incineration of closed files are recommended 

methods of destruction of client files. If third 

party vendors are contracted to destroy records, 

the lawyer is primarily responsible to ensure the 

vendor uses methods that minimize the risk of 

disclosure of confidential information. Destruction 

of email and other digital records also requires the 

use of technologically secure methods to preserve 

confidentiality. Lastly, it is recommended that 

physical hard drives be wiped pursuant to National 

Institute of Standards and Technology guidelines 

prior to resale or disposal of electronic devices.21

After a file is destroyed, a lawyer should maintain 

a permanent record of a “destroyed client file 

register” in either paper form or an electronic 

database organized by client and matter number 

that includes:

The date of the opening and closing 

of the file;

The date of the termination of the 

representation;

A copy of the letter to the client 

notifying him or her of the pending 

destruction of the file;

The name of the lawyer that reviewed 

the file at closing, prior to destruction, 

and authorized the destruction; and

A file destruction notice should inform the 

client when the file will be destroyed:

You are advised that your file will be 

destroyed any time after __________ 

pursuant to the file closing letter dated 

_____. You may request the file at any time 

before that date.

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Receipt for a file transferred to the client 

or a subsequent lawyer at the end of 

representation.

Electronic Correspondence

Email messages constitute papers or property to which 

the client is entitled under Prof.Cond.R. 1.16(d). Like 

other forms of client papers and property, a lawyer’s 

ethical obligation to retain and safeguard materials 

relating to the representation of a client depends on 

the facts and circumstances of each representation.22 

A lawyer should retain emails that have a substantive 

impact upon the client’s future representation. 

For example, a lawyer should retain an email that 

communicates and evaluates a settlement offer from an 

insurance company, but may discard a nonsubstantive 

email confirming a meeting or providing directions to 

a deposition.23 

The retention and maintenance of client related emails 

should be incorporated into the firm’s file retention 

policy. A lawyer is responsible for following the firm’s 

email policy and understanding the underlying 

technology that creates and stores the emails.24 Failure 

to do so may cause the inadvertent loss of important 

lawyer-client communications that adversely affect 

the client’s future legal needs. Consequently, a lawyer 

should undertake steps to collect and store emails 

by client and matter to ensure they are physically or 

electronically associated with the client file.

Digital Media and “Cloud” 

Storage of Client Files

As law firms adopt digital records as the primary 

method for producing and storing client papers 

and files, lawyers must ensure client information is 

securely stored. Lawyers who continue to handle 

paper documents may consider digital scanning as 

an alternative to traditional file storage methods. 

The Rules of Professional Conduct do not prohibit 

the scanning and simultaneous destruction of paper 

documents; however, there are instances when original 

paper records may constitute part of the client’s file 

and will still need to be maintained. Client property or 

originals of legally significant documents in paper form 

should never be destroyed after scanning, and should 

be returned to the client.

When using technology a lawyer is required to use 

the requisite “legal knowledge, skill, thoroughness, 

and preparation reasonably necessary for the 

representation” including making decisions 

concerning the maintenance of digital client files.25 

The dual application of Prof.Cond.R. 1.6 and 1.15 

requires that any internal or external digital file 

storage method employed by a lawyer must be secure, 

and that reasonable measures be taken to protect the 

confidentiality and security of the client property. 

“Cloud” File Storage

Although not required to do so, a lawyer should 

inform clients regarding the use of “cloud” storage 

of all or part of the client’s file.26 Some clients may 

have legitimate concerns about the level of security 

employed by vendors selected by the lawyer. A lawyer 

must exercise due diligence in selecting a vendor 

that the lawyer has determined will provide services 

consistent with the lawyer’s ethical obligations. Outside 

service providers hired for “cloud” storage of client 

files are considered nonlawyer assistants under Prof.

Cond.R. 5.3(a), thus a lawyer must use reasonable 

efforts to ensure that a vendor’s “conduct is compatible 

with the professional obligations of the lawyer.”27 

The ABA has concluded that the Model Rules of 

Professional Conduct allow for the outsourcing of legal 

and nonlegal support services, if the lawyer ensures 

compliance with the rules relating to competency, 

confidentiality, and supervision.28 A lawyer has a 

supervisory obligation to ensure compliance with 

professional ethics standards even if the lawyer has an 

indirect affiliation with the selected service.29

The use of “cloud” storage systems should prompt the 

lawyer to consider a vendor’s compliance with the same 

confidentiality standards set forth in Prof.Cond.R. 1.6. 

In selecting a vendor, the lawyer must “act competently 

to safeguard information relating to the representation 

of a client against inadvertent or unauthorized 

disclosure by the lawyer or other persons or entities 

who are participating in the representation of the 

client or who are subject to the lawyer’s supervision 

or monitoring.”30 Consequently, a lawyer using the 

services of an outside service provider for digital 

“cloud” storage is required to undertake reasonable 

efforts to prevent the unauthorized disclosure of 

client information.31 This may require a reasonable 

investigation by the lawyer of the methods employed 

by the third-party vendor. Factors to be considered in 

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determining the reasonableness of the lawyer’s 

efforts to safeguard information include, the 

sensitivity of the information, the likelihood 

of disclosure if additional safeguards are not 

employed, and the cost of employing additional 

safeguards.32 

At a minimum, the lawyer employing “cloud” 

storage methods should ensure that:

The vendor understands the lawyer’s 

obligation to keep the information 

confidential; 

The vendor is itself obligated to keep the 

information confidential; and 

Reasonable measures are employed by the 

vendor to preserve the confidentiality of 

the files.

Client Files and 

Succession Planning

A lawyer’s duty of competent representation 

includes safeguarding the client’s interests in the 

event of the lawyer’s death, disability, impairment, 

or incapacity.33 This can be ensured through a firm 

succession plan that contains explicit instructions 

to a named successor lawyer for the handling of 

open client files and matters, as well as closed 

client files maintained pursuant to a file retention 

policy.34 The instructions should include the 

location of the client files and, in the event the 

files are maintained electronically either locally or 

in the “cloud,” any necessary passwords or login 

information. 

The retirement or resignation of a lawyer can 

also present client file issues if the lawyer has 

never implemented an adequate file retention 

and destruction schedule. A lawyer considering 

retirement or resignation should take certain 

steps to ensure the proper transfer of the files 

to a successor lawyer, or begin the process 

of inventorying and disposing of client files. 

The inventorying process should follow the 

aforementioned steps in this guide, including 

using reasonable efforts to contact former clients 

prior to the destruction of files. 

Issued March 18, 2016.

1

 See RESTATEMENT OF LAW III: THE LAW GOVERNING LAWYERS, 

Sec. 46.

2

 Prof.Cond.R. 1.6(c); “Reasonable” when used in relation to conduct by 

a lawyer means conduct of a reasonably prudent and competent lawyer. 

Prof.Cond.R. 1.0(i).

3

 See ABA Comm. on Ethics & Prof’l Responsibility, Informal Op. 1384 

(1989).

4 Sacksteder v. Senny, 2nd Dist., Montgomery, 25982, 2014-Ohio-2678 (June 

20, 2014); ABA Comm. on Ethics & Prof’l Responsibility Formal Op. 471 

(2015).

5 See supra n.2 for definition of “reasonable.”

6

 Adv. Op. 1992-8.

7

 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 471 (2015). 

8 Id.

9

 Adv. Op. 2010-2; ABA Comm. on Ethics & Prof’l Responsibility, 

Informal Opinion 1376 (1977).

10 ABA Comm. on Ethics & Prof’l Responsibility, Informal Op. 1376 

(interpreting former Model Code of Professional Responsibility DR 

9-102(B)(4).)

11 Adv. Op. 2010-2 (interpreting Prof. Cond. R. 1.16(d).)

12 Id.

13 Omni-Food & Fashion, Inc. v. Smith (1988), 38 Ohio St.3d 385, 528 

N.E.2d 941; Zimmie v. Calfee (1989), 43 Ohio St.3d 54, 538 N.E.2d 398.

14 Prof.Cond.R. 1.16(d).

15 Prof.Cond.R. 1.16, Comment [8A]; Adv. Op. 1992-8.

16 Prof.Cond.R. 1.5(b).

17 See supra n.3.

18 Id.

19 GEORGE CUNNINGHAM, JOHN MONTAÑA, THE LAWYERS’ 

GUIDE TO RECORDS MANAGEMENT AND RETENTION, ABA (2006) 

at 117.

20 Prof.Cond.R. 1.6. See also ABA Comm. on Ethics & Prof’l 

Responsibility, Informal Op. 1384; Kala v. Aluminum Smelting & Ref. Co., 

81 Ohio St.3d 1, 1998-Ohio-439 (1998); Disciplinary Counsel v. Shaver, 121 

Ohio St.3d 393, 2009-Ohio-1385 (respondent disciplined for not properly 

disposing of client files and records in violation of Prof.Cond.R. 1.6(a) 

and 1.9(c)(2)); Disciplinary Counsel v. Robinson, 126 Ohio St.3d 371, 2010-

Ohio-3829.

21 NIST Special Publication 880-88 Rev. 1.

22 See supra n.7. 

23. Id.

24 Prof.Cond.R. 1.1, Comment [8].

25 Id.

26 See Prof.Cond.R. 1.4(a)(2).

27 Prof.Cond.R. 5.3(b).

28 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 451 (2008).

29 Id.; Adv. Op. 2009-06. 

30 Prof.Cond.R. 1.6, Comment [18].

31 See Prof.Cond.R. 5.3

32 See supra n.30.

33 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 369 (1992).

34 Id. 

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