Attorneys often fail to maintain a complete client file or are unsure of the proper amount of time to retain the file.  The following scenarios are common examples.

Hypothetical 1: A client has a meritorious personal injury claim that the attorney feels confident will settle.  The attorney is inadvertently lax in keeping up to date with the client’s file.

Unfortunately, the matter does not settle as expected and trial is fast approaching. The client wants to switch representation to a trial firm and demands that the client file be turned over within 24 hours. The attorney opens the client file and discovers numerous documents and communications are missing due to staff turnover and failure to save documents to the case file. 

Thus, the client is now prejudiced by the attorney’s failure to maintain the client file and submits a complaint to the State Bar. The client claims that the attorney violated the Rules of Professional Conduct (CRPC).

Hypothetical 2: What?!? An attorney has to save all communications to the client file? The attorney believes that doing so is unnecessary and too time-consuming.

To be clear, ignorance is not an excuse for failing to properly maintain and retain a client file. The following will help to shield attorneys from potential CRPC violations.

1. File Maintenance:

The CRPC requires an attorney to competently and diligently represent a client. (CRPC 1.1, 1.3.) Those duties include properly maintaining a client’s file. For example, the failure to keep proper books of account, vouchers, receipts, and checks is a breach of the attorney’s duty to the client. (Weir v. State Bar (1979) 23 Cal.3d 564, 576.) Failure to communicate with the client, to protect the client’s interests, and to return client files on demand may warrant suspension by the State Bar. (Lister v. State Bar (1990) 51 Cal.3d 1117, 1125.)

Rule 1.16 requires an attorney to release to the client, upon request of the client, at the termination of the representation “client materials and property.” Because those items are treated as client materials and property, an attorney has a duty to maintain them, so that they are available to the client. The “client materials and property” include:

• Original client papers and property—original materials furnished to the lawyer by the client or a third-party.
• Communications to and from lawyer—communications to and from the client, opposing counsel, witnesses, or third parties, and records of those conversations.
• Filed documents, discovery materials, and transcripts—pleadings and other documents filed with the court, court orders and opinions, discovery, and transcripts of the proceedings.
• Investigation and research reports—investigation and research reports (both legal and factual) prepared by the lawyer or at the lawyer’s direction.
• Attorney work product—research notes, notes regarding witnesses, strategy and tactics, and similar items generated in the course of the representation, if withholding them would reasonably foreseeably prejudice the client’s representation.[1]
• Electronic files and digital data—intangible data concerning the matter in the form of electronic files and digital data, including emails, text messages, other SMS messages, whether stored on hard drives, local or remote servers, mobile devices, messaging apps, or cloud platforms, and whether maintained solely in electronic/digital format or copies of physical files.[2]

Thus, pursuant to Rule 1.16, it is prudent to save all documents, communications, notes, etc. immediately to the client file. (Rose v. State Bar (1989) 49 Cal.3d 646, 655.) Retaining a complete and up-to-date client file will prevent any unintended violations caused by a delay in producing the client file upon request or producing an incomplete file.

2. File Retention:

The CRPC does not specify a fixed retention period for the file of a client whose representation has ended. Instead, the length of time that a lawyer must retain the file contents depends on: (1) the nature of the items; (2) the nature of the services rendered to the client; and (3) any other factors relevant to determining whether the client would be prejudiced.[3]  However, some general rules have developed.

In civil matters, absent an agreement to the contrary, client materials and property may only be destroyed after the lawyer uses reasonable means to notify the client of their intended destruction and gives the client a reasonable time to respond.[4]  For example, if a matter has been closed, an attorney can send notice to the client of an intent to destroy the client file after a stated amount of time. The minimum retention time is not fixed. However, a five-year retention time, explicitly stated in the representation agreement, plus notice and time to respond prior to destruction, is a good standard of practice.

Criminal matters have a much longer required retention period. Client files involving closed criminal matters should not be destroyed without a client’s express consent while the client is alive.  Moreover, California Penal Code section 1054.9 requires trial counsel to retain a copy of a client’s files for the term of imprisonment where the client is convicted of a serious or violent felony resulting in a sentence of 15 years or more.

While these recommendations create additional administrative duties and costs, it is imperative to properly maintain and retain a complete client file to fulfill an attorney’s duties of competence and diligence.

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[1] (See S.F. Bar Assn. Ethics Opn. 1990-1 [discussing obligation of attorney to disclose to client as part of client file uncommunicated attorney work product, if “the failure to do so would result in reasonably foreseeable prejudice to the client’s rights”]; see also Cal. Code Civ. Proc. §§ 2018.030 & 2018.080 [setting out protection of work product from discovery].)

[2] (See CRPC 1.16(e)(1); Cal. State Bar Formal Opn. Nos. 1994-134, fn. 1 [listing items considered contents of the client file in other ethics opinions] & 2007-174 [discussing a lawyer’s ethical obligation to release electronic items].)

[3] The State Bar Of California Standing Committee On Professional Responsibility And Conduct Formal Opinion Interim No. 19-0004, interpreting Rules 1.4, 1.15, 1.16, and 3.8 of the Rules of Professional Conduct of the State Bar of California.

[4] Id.