Question: Lawyer is a solo practitioner and is winding up Lawyer’s practice with plans to retire at the end of the year. Lawyer asks what notifications need to be sent to current and former clients. Also, Lawyer has client files in paper format going back forty (40) or more years, and more recent files from the last five (5) years are in both paper and electronic format. Lawyer asks how to handle these files upon retirement, and if there are any steps Lawyer may ethically take at this point to minimize how many files Lawyer will have to maintain after retirement.

Answer: As to notifications to current clients, Lawyer should provide notice to current clients regarding Lawyer’s upcoming retirement as part of lawyer’s duty to communicate pursuant to Rule 4-1.4. To the extent that matters for current clients can be concluded, that should be done. As to matters for current clients that Lawyer will not be able to complete, Lawyer should provide notice so that current clients may find other representation consistent with Rule 4-1.16(d) and take other steps reasonably practicable to protect their interests. Lawyer should consider if applicable law requires notice or permission of a tribunal to terminate the representation in accordance with Rule 4-1.16(c).

As to the client files, for former client files that are past the six (6) or ten (10) years holding requirement of Rule 4-1.22, the files are deemed abandoned and may be destroyed in a manner that preserves confidentiality unless an exception exists per Rule 4-1.22(a)-(d). See Missouri Informal Opinion 2021-03 (contract with vendor for disposal of client files). However, items of intrinsic value shall never be destroyed pursuant to Rule 4-1.22. Lawyer should consult Missouri Formal Opinion 118 – Unused Funds Remaining in Trust Fund, to see if the item of intrinsic value may be appropriately handled as a matter of law that is beyond the scope of the Rules of Professional Conduct.

For files of former clients that are within the six (6) or ten (10) years holding requirement of Rule 4-1.22, Lawyer should be mindful that those files belong to the former clients pursuant to Missouri Formal Opinion 115 – Withholding Client Property. Rule 4-1.22 permits Lawyer and clients to reach agreements for a Lawyer to hold files for a lesser period of time. For that to occur, the clients must provide informed consent, confirmed in writing, and Lawyer must maintain a copy of the agreement for the required six (6) or ten (10) years that the files were to be held. Informed consent is a defined term under Rule 4-1.0(e), that requires the communication of adequate information to the clients, including the material risks and reasonably available alternatives to the proposed course of conduct. Similarly, Rule 4-1.0(n) defines what constitutes a writing and signing of the writing. Rule 4-1.22 allows this agreement to be made at any point after the completion or termination of the representations. Lawyer may wish to seek the informed consent, confirmed in writing, of the affected former clients to either have them take possession of the files or to permit Lawyer to securely destroy their files. Lawyer may wish to consult with Lawyer’s risk management carrier for any additional guidance.

Further, since Lawyer has paper files that would fall within the holding requirement timeframes of Rule 4-1.22, Lawyer may wish to consider scanning those files consistent with Missouri Formal Opinion 127 – Scanning Client Files. As with paper files, Lawyer is required to consider the confidentiality of those electronic files consistent with Rule 4-1.6. If Lawyer will be backing those files up to a cloud-based system, Lawyer should consult Missouri Informal Opinion 2018-09 (cloud computing).

Finally, upon retirement, for former clients for whom Lawyer continues to securely hold files as required by Rule 4-1.22, Lawyer should provide contact information where Lawyer can be reached in the event files need to be requested.

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.

To request an Informal Opinion, please visit: http://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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