Summary of Facts Provided
A law firm has been in existence for over 60 years and many of its client files have been inactive for a long period of time. The firm wishes to hire a professional company to shred certain inactive files pre-dating 1988.
Issues and Conclusions
Can a law firm ethically hire a professional company to have the company shred files that have been inactive for many years?
Even with respect to files that have been inactive for over twenty years, a lawyer has a responsibility to make reasonable efforts to contact former clients in order to advise them that their files may be destroyed. The lawyer should attempt to obtain authorization for such destruction from the client or give the client a reasonable opportunity to have returned to them materials provided to lawyer by the client, documents prepared on behalf of the client, and any other documents the client may wish to have returned.
The issue of a client's right to the surrender of papers at the end of representation was covered in depth by CBA Ethics Committee Formal Opinion 104, Surrender of Papers to the Client Upon Termination of the Representation (April 17, 1999). Unfortunately, there is no numeric cutoff period which brings to an end the lawyer's over-arching professional responsibility to retain important documents - particularly critical original documents - which the client would expect the lawyer not to destroy, and to protect the interests of the client in future matters relating to the representation.
Given how old some of the files are, there may be instances in which no authorization to destroy the documents can be obtained from the former client. But even in those cases, the lawyer has an obligation to review each file before destroying it to reach a professional judgment as to whether the file contains documents which should be retained for the client, such as title documents, original wills, and the like.
An article in two parts on the ethical issues surrounding file retention appears in the October and November 2001 issues of The Colorado Lawyer.