20040052 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20040052

Rules: 4–1.15; 4–1.22

Client-Lawyer Relationship

Safekeeping Property; Retaining Client Files

Subject: Client Files

Summary: attorney retaining copy of file after returning file to client

Reference Note: Rule 4 dash–1.15 was amended, effective July 1, 2013. This opinion is based on the rule in effect prior to that date. Please see the July 1, 2013 version of Rule 4 dash–1.22.

Reference Note: Rule 4 dash–1.15 was amended, effective July 1, 2016. This opinion is based on the rule in effect prior to that date.

Reference Note: Effective July 1, 2016, subdivision 4 dash–1.22 of Rule 4 was repealed and a new subdivision 4 dash–1.22 adopted in lieu thereof. This opinion is based on Rule 4 in effect prior to that date.

QUESTION: Attorney represents individual clients in litigation that frequently involves medical records. After the conclusion of a case, attorney returns “the file,” including medical records to the clients. Attorney keeps a copy of the contract of representation, settlement documents, and stipulations for dismissal filed with the court, sensitive material, written settlement offers, and negotiations. Attorney provides a final accounting and disbursement of any money received and gives the client a list of the file materials being returned. Is attorney’s practice in accordance with Rule 4 dash–1.15? Attorney does not keep paper copies other than this, although Attorney may have some of the records in electronic form.

ANSWER: Under the Rules of Professional Conduct, including Rule 4 dash–1.15(h), an attorney is not required to keep any portion of a file, if the “original file” has been returned to the client or disposed of with the client’s consent. However, under Rule 4 dash–1.15(a), an attorney must keep records of funds and other property the attorney held for a period of five years after the end of the representation. Although Attorney and the client can alter the period of time Attorney will hold the file for the client, they cannot alter the minimum period of time Attorney must keep records of funds and other property under Rule 4 dash–1.15(a). Attorney may keep paper or electronic copies of the file or portions of the file, at his own expense. Attorney may want to consult with his malpractice carrier for recommendations regarding keeping copies for the Attorney’s own records.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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