How long must a Utah lawyer keep a client's file after the representation ends?

Plain-English summary

Opinion 96-02 addressed how long a lawyer must keep a client's file after the representation is completed or terminated. The Committee concluded there was no single required retention period. Two principles governed the lawyer's disposition of the file: the lawyer had to return all property to its owner (the client), and the lawyer had to dispose of the file so that the client's foreseeable interests were protected.

The opinion explained that a client's "property" was likely to include at least the materials the client gave the lawyer, the materials the client directed and paid the lawyer to obtain, and the primary object of the representation, while leaving the precise definition of "property" to other rules and law. To protect foreseeable interests, the Committee described two methods: tendering the entire file to the client (or the client's legal representative), or retaining the file for as long as necessary. The retention period depended on factors such as applicable statutes of limitations (including periods that might be tolled for minors), the uses to which the materials might be put, and the client's expectations.

The Committee added that where other laws or rules independently required retention, the lawyer had to comply, giving the example that Rule 1.15 required keeping certain records relating to others' property for five years.

Currency note

This opinion was issued in 1996, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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: Does Utah set a minimum number of years to keep a client's file?

A: No. Opinion 96-02 concluded there was no specific time period governing retention of a client's file; the obligations turned on returning the client's property and protecting the client's foreseeable interests.

Q: What part of the file did the opinion say must go back to the client?

A: The opinion treated the client's "property" as including at least the materials the client gave the lawyer, the materials the client directed and paid the lawyer to obtain, and the primary object of the representation, while noting that what counts as property is governed by other rules and law.

Q: How did the Committee say a lawyer should decide how long to keep the file?

A: It pointed to factors including applicable statutes of limitations (including periods tolled for interested minors), the uses to which the materials might be put, and the client's expectations, giving the example that probate or adoption files are likely kept longer than a month-to-month eviction file.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 1.16 (declining or terminating representation), whose subsection (d) requires a lawyer, on termination, to take reasonably practicable steps to protect a client's interests. It also drew on Rule 1.15 (safekeeping property), which at the time required retaining certain records relating to the property of others for five years. These correspond to ABA Model Rules 1.16 and 1.15.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / Utah RPC 1.16(d) (protecting client interests on termination)
• MR 1.15 / Utah RPC 1.15 (safekeeping property; record retention)

Statutes:

• Utah Code Ann. § 78-51-42 (1992)

Other opinions cited:

• ABA Informal Op. 1376 (1977): client's entitlement to end-product of the representation
• ABA Informal Op. 1384 (1977): protecting client interests on termination

See also

• ABA Formal Op. 471: Surrendering the Client File
• AL Ethics Op. 1993-10: Retaining and Destroying Files
• ABA Formal Op. 92-369: Deceased Solo's Client Files

Source

• Landing page: https://www.utahbar.org/ethics-opinions/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1996-02.pdf

Original opinion text

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

Utah Ethics Opinions better define the client's interests as well as the client's
reasonable expectations regarding, and reliance upon, the
1996. attorney's disposition of the file. (fn7)
96-02. USB EAOC Opinion No. 96-02 One method by which an attorney might discharge the
obligation of protecting all foreseeable client interests is to
Utah State Bar
tender the entire file to the client (or to the client's legal
representative, if the client is deceased or incapacitated).
Ethics Advisory Opinion Committee
(fn8) The propriety of such an offer depends upon whether
the client is capable of appropriately securing or disposing
Opinion No. 96-02
of the file and whether the client reasonably expects that the
Approved April 26, 1996 attorney will continue retaining the tendered materials.
Defining what must be returned to the client in such
Issue: How long must an attorney retain a client's file after situations is the subject of other rules and opinions and lies
the attorney's representation of the client has been beyond the scope of this opinion. (fn9)
completed or terminated?
Another method of protecting client interests vis-à
Opinion: The Utah Rules of Professional Conduct require -vis the client's file is to retain the file for as long as
that an attorney retain or otherwise dispose of a client's file necessary to protect those interests. Such considerations lie
so that all property is returned to its owner, the client's within the sound judgment and discretion of the attorney.
foreseeable interests are protected, and other legal and (fn10) The period of retention might depend upon numerous
ethical requirements are met. The attorney's precise ethical factors, including applicable statutes of limitations for
obligations will vary depending upon several factors actions that might foreseeably affect the client (including
discussed below. statutes that might be tolled for interested minors), the uses
for which the materials might be put, and client
Discussion: Two principles should guide an attorney's expectations. An attorney, for example, is likely to retain
disposition of a client's file upon completion of probate or adoption files longer than a file related to
representation or termination. (fn1) eviction of a month-to-month tenant.
Client Property. An attorney must return all property to its To the extent other laws or rules require an attorney to
owner. (fn2) What constitutes "property" is a matter retain all or part of a client file, the attorney must comply
addressed by other laws and rules and constitutes an issue with such requirements. (fn11) For example, Rule 1.15(a)
beyond the scope of this opinion. (fn3) Generally speaking, requires the attorney to retain certain records related to the
however, a client's property is likely to include at least the property of others for five years.
material the client has given the attorney, the material the
client has directed the attorney to obtain or procure and for Conclusion: There is no specific time period governing
which the client has paid, as well as that which constitutes retention of a client's file. The guiding principles are the
the primary object of the representation. (fn4) ultimate return of the portions of the file that are the client's
property under Rule 1.16 and the reasonable protection of
Client Interests. An attorney must dispose of a client's file the client's foreseeable legal interests.
so that the client's foreseeable interests are protected. (fn5)
In addition to "property," as discussed above, a client is Footnotes
especially likely to be interested in materials related to an
1."File," as used in this opinion, includes materials an
ongoing matter or one that might foreseeably arise in which
attorney is likely to compile and produce within the course
the applicable statute of limitations has not run, especially
of representing a client, including correspondence,
when the materials (1) have not previously been given to
agreements, notes, legal research, evidentiary materials, and
the client, (2) are not readily available from other sources,
official documents.
or (3) are those the client reasonably expects the attorney to
retain. (fn6)

2. Utah Rules of Professional Conduct 1.15(b) (renumbered
   from Rule 1.13(b) in 1995); see also Utah Code Ann. §
   The obligation to protect client interests is intimately
   78-51-42 (1992).
   related to discussing disposition of the client's file with the
   client (or with the client's legal representative, if the client
   is deceased or incapacitated). Such discussions should

Page 2

3. See, e.g., Utah Rules of Professional Conduct 1.16 cmt.
4. E.g., ABA Comm. on Ethics and Prof. Responsibility,
   Informal Op. 1376 (1977) (client in trademark dispute
   entitled to "end-product," including certificates or other
   evidence of registration and related search results).
5. Utah Rules of Professional Conduct 1.16(d). "Upon
   termination of representation, a lawyer shall take steps to
   the extent reasonably practicable to protect a client's
   interests." See also id. Rules 1.1-1.3; see, e.g., ABA Comm.
   on Ethics and Prof. Responsibility, Informal Op. 1384
   (1977); N.Y. State Bar Op. 460; reported in 49 N.Y. St. B.J.
   259 (1977).
6. ABA Informal Op. 1384.
7. E.g., ABA Informal Op. 1384; Fla. State Bar Assoc. Op.
   63-3, 1963 WL 7601, reported in Am. Bar Found. Dig. of
   Bar Assoc. Ethics Op. at 91 (1970); N.Y. State Bar Op.
   460; N.Y. County Bar Op. 624 (1974), reported in 1975
   Supp., Dig. of Bar Assoc. Ethics Op. 368 (1977).
8. Maine Bar Assoc., Op. 74, ABA/BNA Lawyers' Manual
   on Prof. Conduct [1986-90] 901:4203 (1986).
9. See, e.g., Utah Rules of Professional Conduct 1.16 cmt;
   ABA Informal Op. 1376; ABA Informal Op. 1384; Wis.
   Bar Assoc., Memo Op. 4-78 (1979), reported in 1980 Supp.,
   Dig. of Bar Assoc. Op., at 620; Bar Assoc. of San Francisco
   Op. 1989-1, ABA/BNA Lawyers' Manual on Prof. Conduct
   [1986-90] 901:1851 (1989); L.A. Bar Assoc. Op. 362
   (1976), reported in 1980 Supp., Dig. of Bar Assoc. Op., at
   73.
10. ABA Informal Op. 1384.
11. See Utah Rules of Professional Conduct 8.4(a)-(c).
    Rule Cited:
    1.16