Firm Attorney Discusses Important Issues Surrounding the Ethics of Files with Indiana Lawyer
When dealing with files from matters that have long since ended, it is important to manage them properly. Bingham Greenebaum Doll LLP attorney Jessica Whelan and James J. Bell discussed issues surrounding the storage and maintenance of files in their co-authored column for the Indiana Lawyer recently.
In their latest column, Whelan and Bell provide three key insights on the topic:
1. Some parts of the file are the client’s.
Once representation has been terminated with a client, attorneys are expected to take steps to protect a client’s interest. As a part of this process, lawyers must surrender materials to which the client is entitled. In order to explain what materials should be surrendered, Whelan and Bell cite a formal opinion recently issued by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility which states, “. . .at a minimum, when requested, a lawyer must surrender any materials provided to the lawyer by the client, legal documents filed with a tribunal (or those completed, ready to be filed, but not yet filed), executed instruments (like contracts), orders or other records of a tribunal, and correspondence of the lawyer connected to the representation on relevant issues, including email.”
2. Parts of the files are the attorney’s.
Although certain parts of the file are the client’s, Whelan and Bell explain that the client is not entitled to papers and property that the lawyer generated for the lawyer’s own purpose while working on the client’s matter.
This refers to materials such as mark-ups of documents, internal conflict checks, personal notes, etc. It is important to keep in mind, however, that if representation is terminated in a matter before the end of the matter, the attorney may be required to provide the client with certain materials generated for the attorney’s own purpose in order to protect the client’s interest.
3. The length of time an attorney should store records.
There is no definitive length of time an attorney is required to keep a file. Whelan and Bell recommend that an attorney send notice to the client and ask them to come and get their file at the end of the case, when it is no longer needed. They also remind readers to be sure to get a receipt showing that the client did, in fact, take the file. Similarly, if you decide it is prudent to destroy files, keep a record of which files you have destroyed.