When can a law firm return, destroy, or charge for storing a former client's closed file?

Plain-English summary

Law Firm X, no longer providing services on closed matters, asked whether it could return closed files to clients without a request, dispose of files a client refuses to take, and, if it retains files to protect the client or firm from future litigation, charge the client for storage.

The Commission drew general principles from Rule 3.5(a)(2) (a lawyer must take reasonable steps to avoid foreseeable prejudice on withdrawal, including delivering papers and property the client is entitled to) and Rule 3.6(f)(2) (safekeeping and delivery of client property). It concluded that a lawyer's duty to safeguard a client's property does not end with the representation; a file with information of value to the client should not be destroyed without timely advance notice and full opportunity for the client to take custody; no general rule fixes when destruction is safe (for example, a file should not be destroyed where the information may be useful in a matter for which the limitations period has not run); but requiring indefinite storage of files with no useful information serves no purpose. Applying those principles: (1) the firm may return a file to the client without a request, provided it is satisfied the client will actually receive it and can responsibly secure and dispose of it (not, for example, delivering to a client incapable of appreciating the decision), and there is no reasonable client expectation of longer firm custody; (2) if it cannot release custody for those reasons, it may destroy the file only if it determines there is no reasonable likelihood the file holds valuable, useful information not otherwise readily available that the firm knows or should know would help the client in a future matter, being especially careful with original documents; and (3) if it can neither release nor destroy the file, and there was no prior storage-charge agreement and the client reasonably expected the firm to retain the file, the firm may not charge for storage without the client's consent, and may never charge without prior consent where storage is solely to protect the firm.

Currency note

This opinion was issued in 1986, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm return a closed file to the client without being asked?

A: The opinion concluded yes, provided the firm is satisfied the client will actually receive it and can responsibly secure and dispose of it, and there is no reasonable expectation that the firm would keep it longer.

Q: When may a firm destroy a closed client file?

A: The opinion concluded a firm may destroy a file only if it determines there is no reasonable likelihood the file contains valuable, useful information not otherwise readily available that would help the client in a future matter, and it should be especially careful with original documents.

Q: Can the firm charge the client for storing the file?

A: The opinion concluded the firm may not charge for storage without the client's consent where there was no prior agreement and the client reasonably expected the firm to retain the file, and it may never charge without prior consent when storage is solely to protect the firm.

Q: Does the duty to safeguard a file end when the case ends?

A: No. The opinion concluded a lawyer's duty to safeguard a client's property in his possession does not cease merely because the representation has ended.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.5(a)(2) (steps on withdrawal, including delivering papers and property the client is entitled to) and Rule 3.6(f)(2) (notice, identification, safekeeping, and delivery of client property). These correspond to ABA Model Rule 1.16(d) (returning papers and property on termination) and Model Rule 1.15 (safekeeping property). The opinion notes the Supreme Court has impliedly held no statute of limitations applies to client grievances.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 (declining or terminating representation; return of property); Model Rule 1.15 (safekeeping property)
• Maine Bar Rule 3.5(a)(2); Rule 3.6(f)(2)

Other authority:

• Maine Supreme Court order of April 11, 1979, 396 A.2d at p. LV (no limitations period on client grievances)

See also

• ABA Formal Op. 471: Surrendering the Client File
• Maine Ethics Op. 185: Outsourcing Closed-File Storage

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91186

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: October 1, 1986

Law Firm X does not wish to retain custody of its closed client files on matters for which it is no longer providing services. Can it return these files to the client absent such a request from the client? If the client refuses to take custody of the files, may the firm dispose of them? May the firm in the latter case assess the client for the cost of the storage of the files if it elects to retain the files to protect the client or the firm from future litigation?

Opinion

Before addressing each question raised, there are two rules in the Code of Professional Responsibility that provide general principles that have some application to the questions raised. Rule 3.5(a)(2) states:

A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

Rule 3.6(f)(2) states:

A lawyer shall:

(i) Promptly notify a client of the receipt of his funds, securities, or other properties;

(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe-deposit box or other place of safekeeping as soon as practicable;

(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to his client regarding them; and

(iv) Promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

From the above Rules several general conclusions can be made that have some application to the questions raised. First, a lawyer's duty to safeguard a client's property in his possession does not cease merely because his representation ends. Secondly, a client file containing any information of value to the client should not be destroyed without the client having been given timely advance notice and full and ample opportunity to take custody of it. Thirdly, no general rule can be made as to when it is safe to destroy a client file.[1] For example, a file should not be destroyed if the lawyer knows or has reason to know that the information may be necessary or useful to the client in a matter in which the applicable statute of limitations has not run. Finally, it must be recognized, on the other hand, that increasing the lawyer's overhead expense by requiring him to indefinitely store all client files even if they contain no useful information serves no useful purpose for the client or the public.

With these general principles in mind, the Commission answers the specific questions raised by the inquiry as follows: The firm may return the file to the client absent a request from the client as long as in so doing it is satisfied that the client in fact will receive it under circumstances in which he is able to take reasonable measures to secure it and dispose of it responsibly. For instance, the attorney cannot simply deliver possession of a file to a client who is incapable of understanding or appreciating the importance of making an appropriate decision as to its disposal. There must also be no reasonable expectation on the part of the client that the firm would retain custody of the file for a period longer than the time it seeks to dispose of it.

If the firm cannot release custody of the file due to the existence of one of the above conditions, the firm can destroy it only if it determines there is no reasonable likelihood that the file contains valuable and useful information, not otherwise readily available to the client, that the firm knows or has reason to know would be useful to that client in a future matter. The firm should be particularly careful not to destroy original documents if there is any reasonable possibility that they may be needed in the future.

If the firm determines it can neither surrender custody of nor destroy the file for any of the reasons cited above, and if there has been no prior agreement with the client with respect to a charge for the cost of storage and the client had a reasonable expectation that the firm would retain custody of the file as part of its legal services, the firm may not assess a fee for storage without the client's consent even if it determines it is doing so to protect the client from future litigation. Under no circumstances may it assess a fee without the client's prior consent when the purpose of the storage is solely to protect the firm from future litigation.

Footnote

[1] The lawyer's own interests may be served by retaining a client file beyond the six year limitation period when there is any reason to suspect that a client grievance may be brought concerning the subject matter which the file contains. The Supreme Court has impliedly held that no statute of limitations applies to client grievances. See Supreme Court order of April 11, 1979, 396 A.2d at p. LV.