To keep or not to keep?
That is the question attorneys often face with client files.

By JAMES S. SUDLER
Spring 2016

The Office of Attorney Regulation Counsel has perfected its dumpster diving skills.

On more than one occasion in recent years, the office has been notified of client files found in public trash bins ready for anyone to come and read. Needless to say, this is not the paragon of proper file management.

Disposal is just one issue when it comes to handling your client files. New rules adopted by the Colorado Supreme Court a few years ago make clear how long you must hold on to certain files and under what circumstances you’re allowed to dispose of them.

File retention isn’t necessarily a fun part the job, said Denver attorney Phil Cherner, who represents attorneys in disciplinary matters. A digital file system can be efficient but also time consuming if you still have numerous paper copies of files. Some attorneys would just rather not deal with it.

“It doesn’t generate fees so a lot of this won’t get done unless you take the bull by the horns,” Cherner said.

Not handling it properly, however, can land you in hot water, so take a few steps to ensure you’re complying with the Colorado Rules of Professional Conduct.

A little common sense will go a long way with file retention. (Like not throwing them in a public dumpster.) Cherner said you’ve got to keep files in a secure location. That means secure from not only unauthorized eyes but also from the elements. If your basement has a tendency to flood, store them off the ground or opt for another location. Next to that leaky radiator probably won’t work, either.

What about the timelines for retention? (While not technically client files, any financial information related to a client, such as trust account information, must be kept for seven years, according to Colorado Rule of Professional Conduct 1.15D.)

Colorado Rule of Professional Conduct 1.16A governs actual client files. It states that in certain criminal matters, files must be kept:

For the life of the client if the matter resulted in a sentence of death, life without parole or an indeterminate sentence;

For eight years if the client was sentenced for a felony and the sentence was appealed;

For five years if the client was sentenced for a felony and the sentence was not appealed.

In other cases, 1.16A states that provided there are no pending or threatened legal proceedings related to a particular matter:

Files may be destroyed as long as the lawyer has given notice to the client at least 30 days prior to destruction;

Files may be destroyed without notice at any time after 10 years past the termination of representation.

The Rule offers one easy solution by allowing attorneys to draft a written file retention policy and incorporate it into the fee agreement provided to clients.

(For more information on what clients may expect from their attorneys, see our guide “Hiring and Working with an Attorney.”)

Cherner has implemented a couple of different strategies for retaining client files during his career. In the past, every time he completed a case, he asked himself how long he had to keep it and then assigned a destruction date.

“There’s nothing worse than looking at a file six years after you’re done with it and wondering when you can destroy it,” he said.

To reduce the number of times he had to shred, he assigned files a destruction date with only even numbers of years. (For instance, a financial record that is required to be kept for seven years was assigned a destruction date eight years away.) He then had a secure shredding company’s truck come by every two years and destroy any files that had reached their date.

In recent years, however, Cherner began digitizing all his files. Now, he said, “the idea of when to destroy them is almost academic, because it’s almost like keeping them is easier than throwing them out.”

He keeps everything on a hard drive and backs up that hard drive. He also keeps a CD version of the files as well. Once he had everything digitized, he encouraged clients and opposing counsel to only send him documents electronically.

For more information on retaining files, read “New Colorado Rules on Retention of Files” from The Colorado Lawyer, August 2011.

James S. Sudler is Chief Deputy Regulation Counsel for the Trial Division in the Office of Attorney Regulation Counsel.