Lawyers in Maryland are generally required to retain client files for a period of at least five years from the conclusion of the representation. Bear in mind, lawyers have a responsibility that extends beyond the confines of the courtroom and legal consultations. Central to this role is the obligation to safeguard and maintain the records, documents, and information belonging to their clients. This article sheds light on the layers of an attorney’s obligation in Maryland to preserve client files.
Lawyers are required to keep client files according to the Maryland Attorney’s Rules of Professional Conduct, specifically Rules 19-301.15 and 19-301.16. Rule 19-301.15 requires lawyers to keep records of client property they receive “for a period of at least five years after the date the record was created”. . . and promptly give back any property the client has a right to receive. This is consistent with ABA Model Rule 1.15. The Comment to Rule 19-301.15 states:
“ An attorney should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property of clients or third persons, including prospective clients, must be kept separate from the attorney’s business and personal property and, if money, in one or more trust accounts. . . An attorney should. . . comply with any other record-keeping rules established by law or court order. . . (emphasis added)
Rule 19-301.16, states that when the lawyer-client relationship ends, lawyers must return all client property, but the lawyer may retain papers relating to the client to the extent permitted by other law.
Perpetual Storage Not Required
As to the eventual right to destroy old files see Maryland State Bar Association, Committee on Ethics, Ethics Docket 2005-01. In that opinion, the Committee stated that if five years have passed since termination of representation of the client, no originals are in the files, and the lawyer has offered to return the file to the client but has received no response from the client, the lawyer may dispose of the files. If five years have not passed since termination of representation, the lawyer must retain the files for a period of five years and should use reasonable efforts to deliver the property to the client or third party. The Opinion, which was written after the five year adaptation in Rule 19-301-15, further opined:
“It is clear from Rule 1.15(a), however, that you must continue to retain any files for a period of five years after the termination of representation of your clients. To the extent your representation of any client was terminated less than five years ago, you must retain the files for such client. In addition, [the rule] requires that you as an attorney exercise reasonable efforts in an attempt to deliver property to a client or third party. What steps will be deemed reasonable will vary with the circumstances, but we suggest that if any other reasonable means can be undertaken by you to deliver the files to the [client or other third parties] such as boxing them and having them delivered. . . you should seriously consider taking such steps before you decide to destroy the files.”
Prior to the most recent version of Rule 19-301.15(a) and the adoption of the minimum five year requirement, the Ethics Committee embraced the standards by the American Bar Association. These standards (except for No. 5) are not outdated and every lawyer may want to consider them as part of their client file retention schedule:
- Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or on behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records).
- A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.
- A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.
- In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.
- A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds. [the term “indefinitely” was a standard that pre-dated the changes in Rule 1.15 and the adoption of the requirement to preserve such records for five years]
- In disposing of a file, a lawyer should protect the confidentiality of the contents.
- A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.
- A lawyer should preserve, perhaps for an extended time an index or identification of the files that the lawyer has destroyed or disposed of.
Ethics Docket No. 2005-01 (italics added).
Additionally, depending on the type of document versus the cost of storage, a lawyer may want to consider keeping certain types of documents longer than five years. Examples include:
Documents/Contracts involving minors
Estate planning for living clients
Original documents and instruments such as settlement agreements, deeds, etc.
Child custody/support obligations
Documents relevant to legal matters whose statute of limitations has not expired, especially for legal malpractice claims
Long-term contracts with continuing obligations
By maintaining client files, you not only ensure the security of essential documents but also preserve a historical account of the attorney-client relationship. Additionally, leveraging technological advancements by keeping client files in an electronic format, proves to be a cost-effective alternative. Consider including a provision in your attorney-client legal services agreement about your document retention policy. This is essential because it acts as an additional safeguard for both the client and lawyer. Additional ethics opinions regarding the retention of client files and safeguarding client property can be found on the MSBA’s Committee on Ethics website which can be found here.