August 21, 2020
A diligent attorney can accumulate a great deal of files and records over the course of a career, and it is incumbent upon all lawyers to have a reasonable plan to destroy closed files and records after a period of time. This article will discuss a file destruction program and make some suggestions about how to create such a plan.
Many times we at the ARDC will have telephone conversations with family and friends of a recently deceased attorney that go something like this: “My husband practiced law for 40 years and he retired some time ago. He died last month and I am trying to close his estate, but I don’t know what to do with the 200 boxes of records left in a basement or garage”.
Lawyers should have a plan to destroy closed files and records after a period of time, and it is best to have a plan that informs the client of the intent to destroy closed files from the very beginning of the attorney-client relationship.
The reasons to have a file destruction policy arise out of the duty lawyers have to take care of the information entrusted to them by clients as necessary for the representation. A client might often provide information containing Social Security numbers, dates of birth, medical records, or even mental health records. A client provides that information with an expectation that the lawyer will take care to protect the information. In this regard it is good to remember that Rule of Professional Conduct 1.6(a) provides that a lawyer shall not reveal information related to the representation of a client, and that duty continues after the representation has ended.
Ironically, the Rules of Professional Conduct do not explicitly state how long an attorney must keep closed files and records; rather, such questions are matters of prudential judgment.
What follows is a suggested file destruction program.
First – at the very beginning of the representation inform the client of the file destruction program. Make a record of telling that client of the plan and include a reference to the plan in the attorney-client agreement form, or any writing the lawyer uses to set forth the rate and basis of the fee and the purpose of the representation.
Second – keep closed files separate from pending files. This is just good recordkeeping, and it minimizes the risk of misfiling some documents.
Third – when the representation ends, the lawyer should review the file carefully. Return any items that belong to the client at that time, when you probably still have a good address for the client. Items that belong to the client should be returned to the client promptly because they are the property of the client. It is also a good habit to send a termination letter that notes that the representation has ended and that the attorney will proceed no further because the purpose of the representation has ceased. The termination letter could also refer to the file destruction policy and remind the client that the attorney will destroy the file after a period of time.
Fourth – the file destruction plan should make a record of the name of the client, the nature of the representation, and when the file was closed. This information tracks the requirements set forth in Supreme Court Rule 769(a), and this information is useful for screening for potential conflicts of interest that may arise with new clients that walk into your office.
In addition, information about the name of the client and the date the file was closed will allow you to identify the file box and retrieve items and destroy the files periodically when you reach the seven- or ten-year benchmark.1
Additionally, please make sure that you destroy the documents in a manner that will not undermine an attorney’s duty to maintain confidences and secrets. The better practice is to shred or pay for the destruction of the files and records. Do not place the documents in a dumpster or dispose of the documents in a manner that might allow someone else to retrieve or view the items.
In summary, a careful lawyer will have a file destruction program that is explicitly mentioned in the initial engagement letter to the client. The engagement letter should identify the purpose of the representation and the rate and basis of the fee along with a description of the firm’s file destruction policy.
If you are a sole practitioner, you should also create a succession plan and arrange for another lawyer to review your files if you should be unavailable due to serious illness or disability. The ARDC website, www.iardc.org, has information about creating a succession plan.
Such planning is in keeping with the highest calling of our profession as it reflects an abiding concern for the welfare of the clients, and the file destruction program will provide peace of mind to your family and loved ones regarding any tasks associated with closing a law office.
1 There is a divergence of opinion about how long to keep closed files before destruction. Many authors use seven years as a benchmark in part because the Internal Revenue Service uses seven years for tax records. In addition, Illinois Supreme Court Rule 769 (Maintenance of Records) requires attorneys to maintain all financial records related to the practice for seven years. Rule 1.15(a) of the Illinois Rules of Professional Conduct requires an attorney to maintain client trust account records for a period of seven years after the representation has ended. Some authors advocate waiting ten years before destroying files.