The Florida Bar
OPINION 81-8A lawyer who intends to dispose of clients' files should make a diligent attempt to contact all clients and determine their wishes concerning their files. The file of any client who cannot be located must be reviewed individually and may be destroyed only after it is determined that no important papers of the client are in the file. A lawyer who is closing his practice should place files containing important papers in storage or turn them over to the attorney who assumes control of his active files.
January 16, 1981
January 16, 1981
CPR: EC 4-6
Opinions: 63-3, 71-62
Vice Chairman Mead stated the opinion of the committee:
This is an unusual inquiry from a young lawyer who has been diagnosed as having terminal cancer and who, in view of his limited life span, has requested advice as to the disposition of his client files. Specifically, the attorney asks if, after sending a letter to his clients advising them of his proposed course of action, he can destroy the files of those clients who do not respond (or who express no desire to retrieve their files) after a period of 90 days.
In disposing of clients' files, for whatever reason, the attorney must place primary emphasis on the desires of the client. The only provision of the Code of Professional Responsibility dealing specifically with the subject of the maintenance of client files is EC 4-6, which states in part:
A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.
It is incumbent upon the attorney to make an attempt to contact all clients whose files are in his possession. As this Committee stated in Opinion 71-62, "written inquiry should be sent requesting clients' advice as to their wishes in disposing of their files." This communication can be made by sending a letter to each clients' last known address or, if there is no address available, by publication in the local newspaper, requesting the client either to pick up his files or to give permission for their destruction.
This Committee has never attempted to delineate the specific period of time that a client's file must be kept by a lawyer; indeed, it is the contents of the file, not its date, that should dictate the length of time a file is to be retained. There may be some original documents in the file that are vital to a client's interests and which must be preserved regardless of when they were prepared or executed. We adhere to the statement of this Committee in Opinion 63-3 that "Where the client is not available, we believe it desirable to check the file for certainty that no important papers are being disposed of before destroying them."
After a diligent attempt to contact all clients whose files are subject to destruction, the attorney should then dispose of all files in accordance with his clients' directives. The problem, of course, arises in connection with those clients who cannot be reached. We have a deep feeling for the inquiring attorney's situation and we appreciate his desire to proceed in accordance with the guidelines established in the Code; however, it is our opinion that client files cannot be automatically destroyed after 90 days, but that the files of those clients who do not respond must be reviewed individually by the attorney and can be destroyed by him only after he is satisfied that no important papers of the clients are contained in the file. If the attorney does find any such papers, he should have them indexed and either placed in storage or turned over to any attorney who assumes control of his active files.
Obviously, this is the first inquiry of this nature to be considered by the Committee, and we are not attempting to set forth hard and fast rules in making our determination. However, we note that the inquiring attorney has been in practice only slightly more than seven years and his closed files are not so old as to obviate the need for review.