The State Bar Association of North Dakota Summer 2014 Gavel Magazine - Page 31

Because there are so many exceptions, every file should be reviewed before being okayed for destruction. When you originally closed any given file, you should have separated out all of the original documents that belonged to the client and saw that they were returned. If this was never done, be certain to do so prior to having the file destroyed. As files are reviewed one final time keep in mind the following list of documents, which are the documents that should never be destroyed or discarded. They are documents that clearly or probably belong to the client; original documents; any other documents that the client may need or reasonably might expect his lawyer to preserve, and every file’s letter of closure. The letter of closure is an important document to retain because it can help clarify whether or not a conflict of interest is in play later on. If closure letters are destroyed, you take away your ability to provide documentation that an inactive client is actually a past client. The ramification of this is you now may be prevented from benefiting from Rule 1.9 of the Rules of Professional Conduct, also known as the “Former Client” Rule. To varying degrees, in most jurisdictions the file is viewed as client property. This means that you should follow any client’s given instructions as to the final disposition of their file. If you did not obtain those instructions when their file was closed, you should try to do so prior to having their file destroyed. You could simply try sending a letter to the client’s last known address although on older files this may prove problematic. Due to the problem of locating clients on files closed years ago, more and more firms place in their engagement and/or closure letters a short paragraph that discusses the firm’s file retention policy so as to avoid this problem on a going forward basis. If you need to send the client such a letter years after closing the file, you might consider designing a letter based upon this sample language. Our law firm destroys files [number of ] years after they are closed. We have retained your file for that period of time and are now preparing to have it destroyed. If your desire is to have us continue to store it or see that it is returned to you, you must send us a letter telling us of your desire and this must be done no later than seven days after the date you receive this letter. Once you learn your client’s wishes, carry them out. If you are going to destroy a file, make sure you follow through with the notion of destruction. “Destruction” does not mean tossing all the old files in a dumpster out back and, yes, this does need to be said. Take the necessary steps to have old files incinerated or shredded. You cannot compromise your client’s confidences, even during the file destruct