Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.

What are the ethical duties of lawyers regarding retaining client files and providing clients with access to those files?

The Committee received a request for an opinion regarding whether case notes maintained in internal practice management software constitutes a portion of the client file to which the client is entitled upon request. The topic of file-related obligations is not one the Committee has previously had the opportunity to address, though it has been the subject of numerous advisory opinions from the State Bar’s ethics committee. Given the relevance of this topic and the frequency of requests for guidance through opinion requests and the ethics hotline, the Committee has expanded the scope of this opinion to address file-related obligations more generally.

State Bar of Arizona, Rules of Professional Conduct Committee, Opinion Nos. 15-02, 09-04, 09 02, 08-02, 07-02, 05-04, 04-01, 98-07, 93-03, 91-01.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

A lawyer shall act with reasonable diligence and promptness in representing a client.

[1] . . .. [A] lawyer may have authority to exercise
professional discretion in determining the means by which a matter should be pursued.

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

(d) . . . . Except as stated in this Rule or otherwise permitted by law or by agreement between the client and the third person, a lawyer shall promptly deliver to the client . . . any funds or property that the client . . . is entitled to receive and, upon request by the client . . . shall promptly render a full accounting regarding such property.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering documents and property to which the client is entitled and refunding any advance payment of a fee that has not been earned. Upon the client’s request, the lawyer shall provide the client with all of the client’s documents, and all documents reflecting work performed for the client. The lawyer may retain documents reflecting work performed for the client to the extent permitted by other law only if retaining them would not prejudice the client’s rights.

[9] Ordinarily, the documents to which the client is entitled, at the close of the representation, include (without limitation) pleadings, legal documents, evidence, discovery, legal research, work product, transcripts, correspondence, drafts, and notes, but not internal practice management memoranda. A lawyer shall not charge a client for the cost of copying any documents unless the client already has received one copy of them.

[10] Even if the lawyer has been discharged by the client, the lawyer must take all reasonable steps to avoid prejudice to the rights of the client.

[11] Lawyers may fulfill their ethical obligations with respect to client files by returning the file to the client. File retention policies should be disclosed to the client, preferably in writing and at the inception of the relationship.

(i) To protect the interests of current and former clients by planning for the lawyer’s termination of or inability to continue a law practice, either temporarily or permanently.

Lawyers do not maintain files for the sake of preserving files, but rather because keeping records of what they have done or plan to do in the course of representation is part of diligent, competent representation. The Rules of Professional Conduct do not expressly describe what the contents of a lawyer’s file should be, but they do impose obligations that assume the existence of an adequate record of the lawyer’s work. Those obligations include:

These obligations serve as the touchstone for determining the answers to practical questions about what files lawyers should retain and how they should retain them. Moreover, because the focus of record-keeping analysis is based on the purpose of making or retaining a document, the guidance that follows applies to all records generated in the course of a representation, regardless of whether they are in hard copy or electronic form or where they are stored in a system that intermingles them with documents to which the client is not entitled.

Lawyers must retain sufficient information regarding the work they have done for the client to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline.

The specific materials to be kept will depend on the nature of the work being done. Lawyers do not need to keep every document generated in the scope of the representation, so long as the materials kept in their file are sufficient to meet the standard above. For example, a lawyer may discard handwritten notes that are later turned into a memo or may mark up a draft brief by hand and discard that copy once the edits have been made.

Lawyers should consider the security of their files when determining how to store them. Security considerations include both preservation (such as maintaining backup copies) and access (ensuring that unauthorized persons may not have access).

Files may be stored in electronic, rather than hard-copy form, provided that security considerations are addressed, and the client is not otherwise prejudiced. For example, certain hard copy documents may have particular legal or evidentiary status, such as ink-signed wills or contracts. It is advisable to check with the client or offer to return the document before destroying hard copy documents provided by the client to the lawyer.

Lawyers should maintain organized files so that they may be promptly provided to clients in the event of termination, withdrawal, or inability to continue representation. Files must be continuously maintained, rather than organized only after a representation, transaction, or proceeding, so that clients can be assisted in the event of lawyer’s sudden, unanticipated death or disability. See Ariz. S. Ct. R. 41(i).

Once a matter has concluded, the lawyer’s obligation to continue to retain closed files depends on the nature of the representation and the documents. Again, prejudice to the client is the standard on which the lawyer’s obligation is judged. At a minimum, lawyers must give a client sufficient notice before a file is destroyed to permit the client to request a copy while the file remains available. In addition, lawyers can generally satisfy their obligations by returning files to the client.^{^[1]}

Rather than waiting until an issue arises, or until the conclusion of the representation, lawyers are welladvised to communicate with their clients about their file retention and access practices early in the representation. Lawyers can obtain informed consent to a file retention policy in advance by incorporating it into an engagement letter or similar paperwork, provided disclosure to the client is adequately clear.

The client is entitled to a copy of the file documents the lawyer was required to retain, as described above. Per ER 1.16, comment 9, the client is not entitled to internal memoranda that relate solely to practice management issues such as billing, scheduling, and staffing. The client’s right to a copy of file documents is based on the nature of the documents, rather than the location where the documents were stored. Lawyers will find it easier to comply with their duty to provide a copy of the file to the client, and to do so promptly, if they store their files in a manner that separates or flags the documents that must be produced from those that need not.

The client is entitled to a single copy for free, and the lawyer may charge for additional copies or special copying requests that have associated costs, such as, scanning a file maintained in paper form. Lawyers may satisfy their obligations by providing copies throughout the representation, and do not need to provide additional free copies of those documents previously provided at the end of the representation. Of course, the lawyer may choose to provide more documents or copies than are required.

Pursuant to Rule 42.1(l). Opinion as Defense. Reliance on a final Committee opinion may be raised as a defense in any discipline proceeding.

[1] If a lawyer makes a reasonable effort to return the file to the client and to give notice that the file will be destroyed if the client cannot be reached to receive the returned file, then the lawyer may treat the file as abandoned property subject to applicable law. See State Bar of Arizona, Rules of Professional Conduct Committee, Opinion No. 98-07. ² Note that this opinion addresses only what the client is entitled to under the Rules of Professional Conduct. The client may be entitled to more or different documents in other contexts, for example in the context of legal malpractice litigation.