How Long Must an Attorney Retain a File?
California Professional Rules of Conduct, rule 3-700(D) does not state a specific time period for the maintenance and retention of client files once representation has ended. However, rule 1-801 directs an attorney to preserve client properties.
In a formal opinion, the State Bar of California Standing Committee on Professional Responsibility and Conduct concluded “that client files in criminal matters should not be destroyed without the former client’s express consent while the former client is alive.” (Cal. State Bar Standing Com. Prof. Responsibility and Conduct, Formal Opn. No. 2001-157; see also (LA Formal Op., No. 420 (1983).) The State Bar’s Formal Opinion recognizes that the “adoption of measures such as California’s ‘Three Strikes’ law (Proposition 184 of 1994, codified as Penal Code section 1170.12) could make a client file in a matter resulting a prior conviction more important than ever.” (Cal. State Bar Formal Opn., supra, No. 2001-157.) Indeed, “an attorney cannot foresee the future utility of information contained in [a criminal] file.” (LA Formal Opn., supra, No. 420 (1983).) “Absent written instruction from a client on what to do with a file, the attorney should not undertake the destruction of client files on the attorney’s initiative.” (Ibid.)
Formal Opinion No. 2001-157 also provides detailed guidance on an attorney’s ethical duties regarding the retention of former clients’ files in civil cases. (See also L.A. County Bar Formal Op. No. 475; Bar Association of San Francisco Formal Op. No. 1996-1.)
Client File Destruction
When files are destroyed, “the attorney is obliged to use a method of destruction that will ensure no breach of confidentiality.” (Cal. State Bar Formal Opn., supra, No. 2001-157.) This also applies when disposing of client files stored in electronic form. (Id. at fn. 9.)