Board of Professional Conduct Releases Ethics Guide Addressing Client File Retention
The Ethics Guide provides direction on the length of time a lawyer should maintain a closed client file, what portions of the file should be returned to the client, and guidance regarding development of a retention policy for client files. The Ohio Rules of Professional Conduct do not include a specific time for a lawyer to retain a client file, but require that trust account records be kept for seven years, and the signed notice to each client that the lawyer does not carry malpractice insurance be kept for five years. The Guide states that in addition to these Rules, a number of factors, such as the type of practice and the statute of limitations, may influence the length of time a lawyer may need to retain a file, since no one timeframe applies to all client files.
The Ethics Guide recommends that a lawyer develop a client file retention policy to assist the lawyer in maintaining, returning, storing, and destroying client files. Clients should be notified in writing of the file retention policy at the beginning of the representation. Prior to closing a file, a lawyer should inventory the file to determine that all matters are resolved, which documents and property belong to the client, and which documents may not belong to the client, such as attorney work product.
The Ethics Guide encourages a lawyer to return the file to the client at the conclusion of the representation, and to maintain a copy of the file, or relevant materials from the file, for the lawyer’s records. If a lawyer never maintained a file retention plan prior to retirement, then the lawyer still must inventory the files and attempt to return closed files to tclients prior to their destruction.
The Ethics Guide on Client File Retention is the initial offering produced by the staff of the Board of Professional Conduct. Ethics Guides address subjects on which the staff of the Board receives frequent inquiries from the Ohio bench and bar. Future Ethics Guides will address issues such as lawyer succession planning and lawyers transitioning to the bench from private or public practice.
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