Absent an express agreement that the file be subject to destruction at an earlier point in time, the client may assume availability of the file up to a date seven years after it has been closed, at which time it may be destroyed. Additionally, depending upon the nature of the representation, that which has been created or obtained by the attorney as part of the undertaking and for which the client retained the services of the attorney constitutes property of the client. Original wills, trusts, deeds, executed contracts, corporate bylaws and minutes are but a few examples of documents which constitute client property. We recognize that an attorney may wish to preserve the material for purely business reasons. The potential of further business from the client, the usefulness of the material for similar matters undertaken for others and the protection that may be afforded the attorney should there be a claim of professional malpractice, unethical conduct or a fee dispute are examples of why an attorney may, for such reasons, choose to retain file material.
Publications are replete with suggestions on the best practices in that regard.
The question posed to this Committee, however, is confined to the ethical constraints, and we therefore present no specific advice with regard to the practical business aspect of the matter. Attorneys are well advised to familiarize themselves with the practical issues and the many suggested means of dealing with them. Another purpose for which an attorney may choose to preserve closed file material is based upon the duty of professional care arising out of the specific attorney-client relationship. Examples of such material would be medical records which might otherwise become unavailable, financial data obtained which may be useful to establish the basis of an investment for future tax purposes, etc. Failure to retain a client's closed file will not necessarily result in discipline.