Can a law firm destroy the paper version of a closed client file and keep only an identical electronic copy?

Plain-English summary

The inquirer asked whether a firm's file-retention policy complies with the Rules of Professional Conduct. Under the policy, about six months after a client matter is administratively closed, and after the firm has returned (or the client has had the opportunity to receive) any original documents the client provided, the firm wants to destroy the paper file and keep only an identical electronic file.

The committee said such a policy would comply with the Rules of Professional Conduct, provided the firm has appropriate controls in place to ensure that original documents, or other documents with intrinsic value belonging to the client, are not destroyed without the client's permission. The committee added that there may be specific cases where reasonable prudence or some other duty, such as a contractual agreement with the client, requires retention of the physical documents.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which renumbered the property and termination rules (the trust/property rule then RPC 1.14 is now RPC 1.15, and the declining/terminating rule then RPC 1.15 is now RPC 1.16). 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated converting a closed paper file to an identical electronic file as permissible, conditioned on two things: returning original documents to the client, and keeping controls so that originals or other documents of intrinsic value are not destroyed without the client's permission. Per the opinion, the policy is not absolute, since reasonable prudence or another duty, such as a contractual agreement with the client, may require keeping the physical documents in a particular case.

Common questions

Q: Can a firm scan a closed client file and shred the paper?

A: The committee said a policy that returns originals to the client and converts the remaining documents to electronic format complies with the Rules of Professional Conduct, provided controls ensure that originals or documents of intrinsic value are not destroyed without the client's permission.

Q: What documents have to be preserved as paper?

A: The committee said original documents and other documents with intrinsic value belonging to the client must not be destroyed without the client's permission; the firm should return originals to the client.

Q: Are there situations where the firm should keep the paper anyway?

A: Yes. The committee said there may be specific cases where reasonable prudence or some other duty, such as a contractual agreement with the client, requires retention of the physical documents.

Background and rules framework

The opinion concerns a lawyer's duties as to client files and property. Original documents of intrinsic value implicate the lawyer's duty to safeguard client property (then Washington RPC 1.14, corresponding to Model Rule 1.15 and renumbered RPC 1.15 in 2006), and the return of materials from a closed matter implicates the duties on termination of representation (then Washington RPC 1.15, corresponding to Model Rule 1.16). The committee framed the answer around protecting originals and documents of intrinsic value and returning them to the client. Rule numbers reflect Washington's pre-2006 numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.15 / Washington RPC 1.14 (pre-2006 numbering) (safekeeping client property; originals of intrinsic value)
• Model Rule 1.16 / Washington RPC 1.15 (pre-2006 numbering) (declining or terminating representation; return of the client's file)

See also

• WSBA Ethics Op. 1114: Files on Withdrawal vs. CrR 4.7
• WSBA Ethics Op. 1176: Possessory Lien on a Client File
• WSBA Ethics Op. 1060: Attorney's Lien on Client Papers

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1275

Original opinion text

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

Advisory Opinion: 2023
Year Issued: 2003
RPC(s):
Subject: record retention, client files

The inquirer is concerned about whether or not the firm’s file retention policy complies with the Rules of Professional Conduct. More specifically, the inquirer states that after approximately six months from when a client matter (file) has been administratively closed in the inquirer’s office, and the firm has returned to the client or the client has had the opportunity to receive any original documents provided to the firm, the firm wants to destroy the paper file and simply maintain the identical electronic file for purposes of complying with the RPCs. Would such a file retention policy comply with the RPC?

The committee opined that a file retention policy that returns original documents from administratively closed files to the client and converts the remaining documents into an electronic format would comply with the Rules of Professional Conduct, provided the firm has appropriate controls in place to insure that original documents or other documents with intrinsic value belonging to the client are not destroyed without client permission. However, there may be specific cases where reasonable prudence or some other duty, such as a contractual agreement with the client, requires retention of the physical documents.