how long does a lawyer need to keep records aba

Full Answer

How long should a lawyer Keep Trust Account records?

Rule 5-1.2 (e), related to trust account record retention, states that “A lawyer or law firm that receives and disburses client or third-party funds or property shall maintain the records required by this chapter for six years subsequent to the final conclusion of each representation in which the trust funds or property were received. ”

How long does an attorney have to retain a client file?

Attorneys are free to choose a longer or shorter term of retention of client files. Some permanent record should be maintained that describes the file and its disposition. The California Rules of Professional Conduct do not specify how long an attorney must retain a former client’s file.

How long should I keep my financial records?

The answer is: it depends on the type of file. State bars have various rules about the minimum amount of time to keep files. The Model Rules suggest at least five years. See Model Rule 1.15 (a). Many states set this requirement at six years, and some set it even further out.

How long do you have to keep records of a representation?

Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. . . . .

How long do you have to keep a file?

The answer is: it depends on the type of file. State bars have various rules about the minimum amount of time to keep files. The Model Rules suggest at least five years. See Model Rule 1.15 (a). Many states set this requirement at six years, and some set it even further out.

Why do bar associations recommend hanging onto files for the life of the client?

In some fields such as tax and probate, statutes address how long records must be kept. In the criminal law context, bar associations often recommend hanging onto files for the life of the client, because of the possibility of habeas corpus petitions and other post-trial actions. ...

What is a law firm record management policy?

Most law firm records management policies use a matter-centric approach, creating a policy that analyzes individual client files to determine whether they should be retained. While an entire client matter will be considered for retention at one time, both the physical and electronic files must still be well-organized.

What to do before destroying client files?

Before destroying a client file, make sure an attorney reviews it. Is there any reason why the file should be preserved longer? Are there any original documents in the file, such as contracts, that should be saved?

Should we reframe our thinking about destroying documents?

If the storage cost is low, consider holding onto old files that may have potential use in the future.

Do you have to keep legal documents longer?

However, for certain types of legal matters, you must keep the files even longer. These include, among others, issues that deal with:

Who should be involved in drafting retention policy?

Drafting the retention policy and performing research should be a collaborative process between executive management, records management experts, attorneys, and the firm's IT department.

How long should a civil attorney keep client records?

The Los Angeles County Bar Association concluded that a civil attorney should retain potentially significant papers and property in the former client’s file for at least five years analogous to Rule 4-100 (B) (3) of the California Rules of Professional Conduct, which requires an attorney to maintain all records of client funds and other properties that the client provided to the attorney for at least five years .

How long do you have to keep a client's file in California?

The California Rules of Professional Conduct do not specify how long an attorney must retain a former client’s file. Specifically, Rule 3-700 (D) (1) does not set a minimum amount of time that an attorney must keep the former client’s file, nor does it explain when, if ever, particular items in the former client’s file may be discarded or destroyed.

What happens if an attorney inspects a file?

If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. The balance of the file may then be destroyed.

Is physical space necessary for client files?

Physical space may not be as great an issue in the digital age regarding the storage of client files, but the fact remains that the storage of client files is necessary for some time. But how long?

Can an attorney foresee the future utility of the information contained in a criminal case?

In criminal matters, the attorney cannot foresee the future utility of the information contained in the file. The Committee concludes, therefore, that it is incumbent on the attorney in a criminal matter to obtain some specific written instruction from the client authorizing the destruction of the file. Absent such written instruction, the attorney ...

Does California have a retention period?

Although California courts have not yet addressed the retention period, several bar associations within the state, including the State Bar of California, have provided non-binding guidance on this issue. As a threshold matter, these bar associations have recognized a distinction between civil and criminal cases for purposes of the retention period.

Can an attorney destroy a client's property?

If the attorney has no reason to believe that the items proposed to be destroyed include items required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items.

Why is appropriate documentation important for ABA?

In summation, appropriate documentation is crucial for running any high-quality ABA agency. It is suggested that ABA agencies develop a strong system of data collection and train staff on the necessity of retaining data and records in the event of an audit. Furthermore, it is recommended that agencies perform their own internal audit randomly ...

Why is it important to be contacted for ABA services?

When initially being contacted for consideration for ABA services it is important for ABA business owners to ensure that there is a strong intake process in place that acquires all the necessary information to make clinical decisions and determine the appropriateness of fit for the client for services through the agency.

What is a script for ABA services?

Script for ABA services from a medical professional indicating that ABA is a medical necessity and has diagnosis codes on it.

When initially being contacted for consideration for ABA services, is it important for ABA business owners to ensure that answer?

When initially being contacted for consideration for ABA services it is important for ABA business owners to ensure that there is a strong intake process in place that acquires all the necessary information to make clinical decisions and determine the appropriateness of fit for the client for services through the agency. Recommended information to gather during intake includes the following:

Should data from each treatment session be retained in the client's records?

Data from each treatment session with raw data and graphs should be retained in the client’s records. It is easier to maintain data collection with online data collection tools to monitor client progress and will often make graphing and progress reporting easier.

Should agencies retain all of the data and reports from treatment in the client's record?

Agencies should retain all of the data and reports from treatment in the client’s record as dictated by law and regulatory bodies.

Do agencies have to accept all clients?

This is an important concept for agencies to remember that they do not have to accept all clients that get referred to them if they cannot ethically provide treatment and instead should refer them to another agency that may be better suited for the client.

What are the Minnesota rules for retaining client files?

The obligation to retain client files emanates from Rules 1.15 and 1.16 , Minnesota Rules ofProfessional Conduct. Rule 1.15 obligates lawyers to maintain complete records of all properties of theclient coming into the possession of the lawyer and to promptly deliver when requested those propertiesthat the client is entitled to receive. Likewise, Rule 1.16 requires lawyers, upon termination of the attorney-client relationship, to surrender all property that the client is entitled to receive. Neither of these rules,however, provides any guidance or insight about the duration of the obligation to return client property orwhether it is ever appropriate to dispose of client files.

What is the safest file retention policy?

The safest and most conservative file retention policy is one that retains all client documentsindefinitely. Advances in document imaging and indexing, as well as the comparatively inexpensive cost ofelectronic document storage, have caused a number of firms to institute such policies. The decision of manyof these firms to permanently store at least an electronic image of all client documents has been drivenmore by their own need for client document access or to provide a needed service to clients, than the ethicalobligation to safeguard client files.

How long do you have to retain a client's file in Florida?

There is no Florida Bar rule requiring retention greater than six years following the conclusion of the matter. * To forestall potential problems, at the time of engagement attorneys should explain the file retention policy and retention period. In Florida, client files are property of the attorney and not the client; however, ...

How long do you keep a tax file?

The grand total for file retention has been put by experts at anywhere from seven to 15 years; clearly, there is much room for subjective judgment on the part of the firm, although a conservative interpretation is probably called for. In addition, files for some matter types often are retained permanently, such as tax and estate planning files.

What is a good retention policy?

First, the client should be made aware in the initial agreement what will happen to client documents and client files , and under what circumstances. Second, the policy should provide the person responsible for closing out a file clear guidance on what information should be kept and what information may be discarded. Finally, the policy should specify the length of time the remaining material will be kept, as well as where materials will be stored.

Why is permanent storage important?

Permanent storage of digitized files is space-efficient and prevents any future disputes over file contents , but it can be time-intensive. While scanning files has an important role in law firm file retention policies, it should not be regarded as a panacea. It is still necessary, for example, to examine the file to see what must be returned to the client. In addition, it is not physically possible to scan some client property into one’s files. And, finally, someone has to scan the documents. So, while it is tempting to construct a policy that consists mainly of “scan everything and keep it forever,” this is generally not practical or wise when an additional factor is the labor dollars to “scan everything.”

What are the most difficult questions that Bar Ethics staff answer?

This is among the most difficult questions that Bar ethics staff answer, because it breeds a number of other questions: Does the file contain original client records? If so, what are the ethical obligations to return originals to a client? Do the files contain transactions that were of a contingent nature? If so, what are the ethical obligations? Were trust funds involved? And, so on.

What is the ABA ethics opinion 1384?

A review of relevant ABA informal ethics opinions demonstrates an unwillingness to establish a bright-line length of time a file should be retained before disposal . ABA Informal Opinion 1384 states, in part:#N#“A lawyer does not have a general duty to preserve all of his files permanently, but clients (and former clients) reasonably expect from their lawyers that valuable and useful information in the lawyers’ files, and not otherwise readily available to the clients, will not prematurely and carelessly be destroyed, to the clients’ detriment. All lawyers are aware of the continuing economic burden of storing retired and inactive files. How to deal with the burden is primarily a question of business management, and not primarily a question of ethics or professional responsibility.”

Why do firms scan documents?

Scanned Files Given the above complexities, many firms are turning to scanning files as a means of avoiding the question of what to retain and for how long. The Florida Bar Ethics Opinion 06-1 addresses this issue. “Lawyers may, but are not required to, store files electronically unless: a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests. Files stored electronically must be readily reproducible and protected from inadvertent modification, degradation, or destruction.”

When do lawyers have to provide materials to the client?

But the opinion states that certain materials generated by a lawyer for internal use may have to be provided to the client when the lawyer’s representation of the client is terminated before the matter is completed.

Do lawyers have to return papers after termination of representation?

In Formal Opinion 471, however, the committee acknowledges that lawyers often must return papers and property to clients after the termination of the representation to protect clients’ interests.

How long do you have to keep client records?

This statement was not intended to create a per se five-year rule, but instead was meant to provide a conservative recommendation upon which lawyers could generally rely. Five years remains a safe default option for the lawyer and client in the absence of an agreement otherwise. The five-year rule is also supported by ER 1.15 (a), which sets a five-year requirement for keeping trust-account records. However, a practitioner and client may agree upon other equally appropriate time periods. For example, two years may be an appropriate time frame to retain some types of client files, while seven years may be more appropriate in other circumstances. The five-year period does not satisfy the purposes of file retention in all cases.

How long is a probate file retained?

Indefinite file retention for probate or estate matters, homicide cases, life sentence cases and lifetime probation cases is appropriate. File retention of five years for most other matters is appropriate. An appropriate period of retention will vary depending upon the lawyer’s judgment of the client’s reasonable need for the file materials. This judgment should include consideration of applicable statutes of limitations, the length of the client’s sentence or probation, and the uses by the former client of the material.

Why is file retention so expensive?

File retention can be costly due to the volume of cases to be stored and the sheer quantity of documents comprising each individual file. In an effort to minimize file-storage costs, lawyers have asked whether they can purge client files of nonessential or irrelevant documents prior to storage.

What is a lawyer's file retention policy?

Lawyers should establish a file-retention policy and communicate that policy to the client, in writing, at the commencement of the lawyer/client relationship. If a lawyer does not have a file-retention policy, the lawyer will have additional ethical obligations to fulfill prior to the destruction of any closed client file.

Why are client files retained?

Client files are retained to safeguard client confidences, client property, and client’s interests. ER 1.6, ER 1.15, and ER 1.16 (d). This purpose and the specific implications of the lawyer’s file-retention policy should be explained to the client in writing at the beginning of the representation. ER 1.16, cmt. 11, ER 1.4. Communicating the file-retention policy to the client affords the client a better understanding of the risks and assurances of the policy and allows the lawyer the opportunity to more closely tailor the policy to the client’s specific needs and desires.

How to manage closed client files?

Lawyers should develop and implement policies to manage closed client files. The policy should be communicated to the client in writing at the beginning of the lawyer/client relationship. The policy should be closely tailored to meet the client’s needs, taking into account, applicable statutes of limitations, substantive law, and particular circumstances likely to arise from the nature of the representation. Devoting resources to policy development and implementation will best protect the interests of the clients and should have the additional benefit of easing lawyers’ managerial responsibilities.

What documents are included in a client's representation?

Ordinarily, the documents to which the client is entitled, at the close of the representation, include (without limitation) pleadings, legal documents, evidence, discovery, legal research, work product, transcripts, correspondence, drafts, and notes, but not internal practice management memoranda.