From the desk of the Attorney General

January 9-15, 2017

New rule on old files

Leslie Rutledge
Arkansas Attorney General

How long should an attorney keep old client files? Sometimes a specific law, regulation or court order dictates the period of time for which an attorney must retain a particular document, but often no specific rule applies. Until very recently, this meant that attorneys were mostly on their own in establishing a reasonable file-retention policy. The lack of a general standard invited anxiety for some members of the bar and unnecessary conflict between attorneys and clients.     

In December, at the recommendation of the Committee on Professional Conduct, the Arkansas Supreme Court issued guidance that clarifies an attorney’s professional responsibility in this area. The Court adopted Arkansas Rule of Professional Conduct 1.19, which provides that an attorney “shall take reasonable steps to maintain the client’s file in paper or electronic format for five (5) years after the conclusion of the representation.” Unless a law, regulation, rule or court order imposes a longer retention period in a specific matter, attorneys may — with limited exceptions for certain criminal cases — destroy the client’s file at any time after the five-year mark without fear of violating a duty of professional conduct.  

Under the Rule, the client file includes any writings or property that the client gave to the attorney as well as any document that has been produced as part of the representation — including pleadings, correspondence and even unfiled, unserved or unexecuted documents such as transcripts, depositions, medical records and expert reports. It is important to note that the Rule recognizes no consequential distinction between electronic and paper documents. Excluded from the client file are the lawyer’s work product, internal memoranda, research materials, investigative reports, internal conflict checks, firm assignments, ethics consultations and records that might reveal the confidences of other clients.

The Rule also clarifies an attorney’s duty to provide copies of the file to a client. Upon the client’s written request, “the lawyer shall surrender the client’s original file or a copy of the file, in paper or electronic format.” The Proposed Rule had not given attorneys this option of surrendering either the original file or a copy. But the Final Rule makes clear that attorneys may satisfy their professional duty by producing a copy of the client file. In that case, the client is responsible for the costs of copying, but an attorney is not permitted to withhold delivery of the client file until receiving payment. Alternatively, if the attorney produces the original client file, then the attorney is responsible for the cost of any copies he or she wishes to retain. The Rule — as explicated in the comments — further suggests that, at the beginning of a representation, a lawyer should inform his client of all the client’s rights with regard to the file, including when, how and for what period of time the client can obtain his file.  

This new Rule seeks to protect the interests of clients while avoiding undue burdens on attorneys. It appears to strike a good balance. I encourage all Arkansas attorneys to familiarize themselves with the new Rule.