Resource Page: File Retention

Informal Opinion 2022-10

QUESTION: Attorney maintains original closed client files in paper format at a local storage facility. Some of those files may have contained items of intrinsic value. Those paper files were severely damaged in a recent natural disaster that resulted in record flooding in the area where the storage unit is located. Files have been submerged in flood waters and are rotting and molding such that the files cannot be salvaged. Attorney does not maintain electronic copies of the closed client files that were in storage. Attorney asked what steps need to be taken under the Rules of Professional Conduct.

ANSWER: Attorney has an obligation to maintain client files, even those that are closed, in accordance with Rule 4-1.22, as client owns the original file, cover-to-cover, as detailed in Formal Opinion 115, as amended. Attorney must identify which closed files were in the storage facility and notify the clients or former clients as to the destruction of the original file since Attorney is required to maintain those files for the requisite period of time. See Rules 4-1.22 and 4-1.4. Attorney should assist clients or former clients to the extent reasonably practicable. See Rule 4-1.16(d). Since these original files have been lost, as well as items of intrinsic value, Attorney should consider consulting with Attorney’s malpractice insurance provider or private legal counsel for additional guidance.

Although the files are unable to be salvaged, they still must be disposed of in a manner that preserves confidentiality in accordance with Rule 4-1.22. Attorney may need to seek the assistance of a professional in disaster recovery to dispose of the damaged client files appropriately and ethically in accordance with Rules 4-1.6 and 4-5.3. See Informal Opinion 2021-03.

While Rule 4-1.22 does not specify in what format Attorney must store client files (i.e., paper or electronic), it provides that such files, “except for items of intrinsic value, may be maintained by electronic, photographic, or other media provided that printed copies can be produced. These records shall be readily accessible to the lawyer.” In the future, Attorney may wish to consider implementing redundancy of client files to prevent such a loss, as well as additional security measures over items of intrinsic value. See also Rule 4-1.6 (a) and (c), Comments [15] and [16], Formal Opinion 127, and Informal Opinions 2020-09 and 2018-09.

QUESTION: How long must a lawyer keep a client file?

ANSWER: Where representation was completed or terminated on or after July 1, 2016, a lawyer shall securely store a client’s file for six years after completion or termination of the representation, absent other agreement between the lawyer and client through informed consent confirmed in writing.  Rule 4-1.22. See also Rule 4-1.0 (defining “informed consent” and “confirmed in writing.”)  Where representation was completed or terminated prior to July 1, 2016, a lawyer shall securely store a client’s file for 10 years after completion or termination of the representation, absent other arrangements between the lawyer and client.  Rule 4-1.22.  A lawyer’s obligation to maintain trust account records is governed by Rule 4-1.15(f).  See rule 4-1.22 for additional file retention requirements. A lawyer’s malpractice carrier may have recommendations about how long files or copies of files should be kept for other purposes.

3) Electronic files:

QUESTION: May an attorney store a file electronically?

ANSWER:  Rule 4-1.22, Retaining Client Files, allows a client file, except for items of intrinsic value, to be maintained by electronic, photographic, or other media if printed copies can be produced and the records are readily accessible to the lawyer.  Formal Opinion 127 permits destruction of the paper file (except for items of intrinsic value) before the expiration of the required retention period if the file is maintained electronically for the required period in accordance with the requirements in the Formal Opinion.  Those requirements continue to be applicable to electronic storage of client files where the lawyer does not maintain a paper file for the file retention period.

Informal Opinion 2018-09

QUESTION: May Attorney use “cloud computing” in a way that is consistent with Attorney’s ethical obligations?

ANSWER: Attorney may use cloud computing in the practice of law without violating the Rules of Professional Conduct if Attorney maintains competence in the use of relevant technology (Rule 4-1.1) and makes reasonable efforts to safeguard confidential information from inadvertent or unauthorized disclosure or access, as warranted by the particular facts and circumstances of each client’s matter (Rules 4-1.6(c) and Comments [15] and [16]; Rule 4-5.3 and Comment [3]). Attorney should read carefully the cloud computing provider’s terms and conditions of service. Attorney should ensure adequate provider policies and practices as to (1) ownership and security of client information, and (2) attorney and provider access to client information. Reasonable efforts to safeguard confidential information may include (but are not limited to) ensuring adequate provider policies and practices regarding:
• Security measures protecting confidentiality of client information during transmission and storage;
• Prompt notification of Attorney in the event of a security breach or provider’s receipt of a subpoena for client information;
• Ownership of data solely by Attorney or Attorney’s firm;
• No access rights by the provider to client information, except as required by law;
• Regular data backup by the provider;
• Handling of client information in the event Attorney’s relationship with the provider is terminated;
• Compliance with applicable law regarding data storage and transmission;
• Reliable access to data by Attorney;
• No access to data by third parties, including advertisers, except as required by law; and
• Domestic storage of data, or, alternatively, storage in a jurisdiction subject to United States data protection laws or equivalent.

Because what constitutes adequate provider policies and practices in these areas may change as relevant technology evolves, Attorney is encouraged to consult with a qualified information technology professional, take continuing legal education courses on use of technology in practice, and/or engage in regular self-study of materials from reputable sources to maintain competence in the use of cloud computing in the practice of law.

QUESTION: How should a lawyer handle a closed file that has been retained longer than the file retention period required by Rule 4-1.22?

ANSWER: If the client does not request the file within the file retention period specified in Rule 4-1.22, the file shall be deemed abandoned by the client and may be destroyed in a manner that preserves client confidentiality.  Rule 4-1.22 should be consulted for circumstances under which a file or portions of a file must not be destroyed, even after the retention period expires.

QUESTION: What are items of intrinsic value in a client file, which Rule 4-1.22 prohibits a lawyer from destroying?

ANSWER: Missouri’s Rules of Professional Conduct do not define “items of intrinsic value.”  Examples may include securities; negotiable instruments; and original wills, deeds, and trust documents. 

QUESTION: To whom does the file belong?

ANSWER: The original file belongs to the client, cover to cover. “The client’s files belong to the client, not to the attorney representing the client. The client may direct an attorney or firm to transmit the file to newly retained counsel.” In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997). See also Formal Opinion 115, as amended.  Upon termination of the representation, Rule 4-1.16(d) requires the lawyer to surrender papers and property to which the client is entitled.

QUESTION: What if a client or former client asks for the file?

ANSWER: A client must be given the original file without charge within a reasonable period of time after request, “except for those items contained within the file for which the attorney has borne out-of-pocket expenses such as, but not limited to, transcripts. The attorney may retain those items until such time as he is reimbursed for the out-of-pocket expense and then they must be immediately delivered to the client.” Formal Opinion 115, as amended.  “The lawyer may retain papers relating to the client to the extent permitted by other law.” Rule 4-1.16(d).  “If a lawyer wishes to keep a copy of the file for his own use or protection, then the lawyer must bear the costs of copying the file.” Formal Opinion 115, as amended.

QUESTION: May attorney work product be removed before the file is given to the client?

ANSWER: “Those items which have commonly been denominated as ‘work product’ of the attorney actually belong to the client because those are the result of services for which the client contracted.” Formal Opinion 115, as amended.  See also Informal Opinion 980141.

Informal Opinion 20030047

QUESTION: If Attorney sends a client a courtesy copy of all pleadings at the time of filing and a copy of all pleadings filed by opposing counsel (with a notation that it is a courtesy copy for the client’s information and safekeeping), is it necessary to copy the file and provide the documents again to the client? May attorney charge for copies of documents previously sent to client?

ANSWER: It is permissible for copies provided to the client during the course of the representation to serve as client’s file, or a portion of the client’s file, if two conditions are met. First, Attorney would have had to provide an explanation of this process prior to sending the copies. Second, the original of the file belongs to the client. Therefore, if there is an original in the file, a copy does not fulfill the obligation to the client unless the attorney and client have agreed that it will. If both conditions are not met, attorney should provide the file to the client and keep copies at Attorney’s own expense.

Informal Opinion 2020-09

QUESTION: Attorney stores client files electronically. In what format should Attorney provide the client file to Client upon request?

ANSWER: The client file belongs to the client. Formal Opinion 115, as amended; In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997). If a client requests an electronically maintained file during the file retention period, Formal Opinion 127 requires the file be “provided to the client in a manner in which the client will be able to access it using commonly used, relatively inexpensive, software and hardware . . . . Alternatively, the attorney may provide the file to the client in paper format, unless that is contrary to an agreement between the attorney and client.” Upon termination of representation, Rule 4-1.16(d) requires a lawyer to take steps to the extent reasonably practicable to protect the client’s interests, including surrendering papers and property to which the client is entitled. If Client has requested the file in a particular format, Attorney should prioritize protection of Client’s interests and take all reasonably practicable steps to accommodate Client’s format request.

Informal Opinion 2019-03

QUESTION: An attorney is leaving a law firm. The departing attorney has been the lead attorney or assisted another attorney at the firm in a number of client matters. What should the firm’s remaining attorneys do with the files for those clients?

ANSWER: The file for each client matter belongs to the client, except for those items in the file for which the firm has borne uncompensated out-of-pocket expenses, such as, but not limited to, transcripts. Formal Opinion 115, as amended. Even if the attorney or firm has not been paid for services rendered, a firm or lawyer must comply with a client’s direction to transmit the file to the departing attorney or new counsel. A client who is notified of the departure of that client’s attorney should be informed that the client file will continue to be housed at the firm until and unless the client communicates his or her wishes as to the disposition of the file. The client file should not be removed or copied by the departing attorney unless the client so directs.

Informal Opinion 2015-10

QUESTION 1: Where an attorney is departing a law firm and has jointly represented two clients in a matter using a single file, and only one of the clients directs the firm to transfer the closed file to the departing attorney, may the firm comply with the client’s request?

QUESTION 2: If so, who bears the cost of copying the file?

ANSWER 1:  According to Missouri Formal Opinion 115, the file belongs to the client, cover to cover, with limited exceptions not applicable here.  Upon termination of the representation, an attorney is obligated to surrender papers and property to which the client is entitled.  Rule 4-1.16(d).  In the absence of a client request or another agreement with the client, a lawyer shall securely store the file in compliance with Rule 4-1.22.  Where two or more clients have one file in common, the lawyer or firm who is custodian of the file must continue to comply with the custodian’s obligation under R. 4-1.22.  In response to a file request to the firm from one client only, the firm may release a copy of the file’s contents to the requesting client or to the departing attorney per the client’s direction and maintain the original file per the Rule. 

ANSWER 2: The Rules of Professional Conduct do not address the issue of who bears the cost of copying a file under these circumstances.  If a lawyer in the firm is making a copy of a file for the lawyer or firm’s own use or protection, the lawyer or firm must bear the costs of copying the file.  Mo. Formal Op. 115.  If the client file becomes the subject of a dispute between the jointly represented clients, Rule 4-1.15(e) requires the lawyer or firm to distribute any portion of the file as to which there is no dispute and hold the disputed portion separately until the dispute is resolved.  If the dispute is not resolved within a reasonable period of time, the lawyer or firm may file an interpleader action.  See, e.g., Mo. Informal Ops. 990152 and 990150.

Informal Opinion 2020-07

QUESTION: May Attorney comply with a protective order or participate in a settlement agreement requiring return or destruction of documents produced during discovery?

ANSWER: Documents in Attorney’s possession acquired during discovery are part of the client file. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” Rule 4-1.16(d). Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Rule 4-1.22, Retaining Client Files, permits a lawyer to destroy a client file, or portions of the file, prior to the expiration of the six-year or ten-year default retention period, but only if the client grants informed consent, confirmed in writing; the items are not of intrinsic value; and none of the conditions in paragraphs (a) through (d) of Rule 4-1.22 exist. See Rule 4-1.0(e) (defining “informed consent”) and Rule 4-1.0(b) (defining “confirmed in writing”).
Protective Orders: In the event a client refuses to grant informed consent, confirmed in writing, to Attorney’s handling of file documents in accordance with a protective order, Attorney should seek to modify the order if Attorney can do so in compliance with Rule 4-3.1, Meritorious Claims and Contentions. If unsuccessful, Attorney is permitted by Rules 4-1.15(d) and 4-1.16(d) to comply with the terms of the protective order. See also Rule 4-3.4(c). Attorney must deliver to the client the remainder of the file or maintain the remainder of the file in accordance with Rule 4-1.22.
Settlements: A lawyer is to abide by a client’s decision whether to accept an offer of settlement, subject to the limits imposed by the lawyer’s professional obligations. Rule 4-1.2(a) and Comment [1]. A lawyer is prohibited from participating in a settlement agreement restricting the lawyer’s right to practice. Rule 4-5.6(b). If Attorney obtains the client’s informed consent, confirmed in writing, to destroy portions of the file, or obtains the client’s agreement to return to another party portions of the file, in accordance with the proposed settlement agreement, Attorney may participate in the settlement agreement on behalf of the client. See Rules 4-1.22 and 4-1.15(d).

Informal Opinion 2020-08

QUESTION: May Attorney representing Client charged with a crime in federal court enter into an agreement by which the prosecutor will provide discovery to Attorney under circumstances advantageous to Client in return for Attorney’s agreement not to turn over discovery to Client?

ANSWER: Attorney must consult with Client about the means by which Client’s objectives for the representation are to be pursued, including whether to enter into a discovery agreement that would prevent Client from obtaining the entire client file. See Rule 4-1.2(a). Attorney should explain the proposed agreement to the extent reasonably necessary to allow Client to make an informed decision. See Rule 4-1.4(b). Comment [1] to Rule 4-1.2 provides guidance that a lawyer is not required to employ particular means in pursuing Client’s objectives simply because a client so directs, and the lawyer should assume responsibility for technical and legal tactical issues while deferring to the client regarding questions such as expense and concern for third persons. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Rule 4-1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” When a discovery agreement is in place, whether other law would permit Attorney to deny a request from Client to obtain the entire file, including discovery, is a question of fact and law outside the scope of the Rules of Professional Conduct.

QUESTION:  When should a lawyer discuss file retention and destruction with a client?

ANSWER: Best practice is to discuss file retention and destruction with a client out the outset of representation and remind the client of the policy or agreement at the conclusion of the representation.  See Rule 4-1.4.  Any consent by the client to early file destruction must be obtained through the client’s giving of informed consent confirmed in writing. See Rule 4-1.22.