Moving offices: can you throw out old files?

The process of moving to a new residence is often stressful and full of logistical snares. Typically the process requires hiring and coordinating moving companies, updating mailing addresses, stopping and starting utilities, and boxing and labeling all possessions in the home. Similar stressful issues arise when a law firm relocates offices – either across the street or to a new city.

Historically, law firms had a tendency to move into office space close to the courthouse and remain there long-term. However, in the wake of rapid technological advances of the past few decades, the COVID-19 pandemic, and the new remote/hybrid work arrangement, law firms may be likely to move offices closer to clients in order to maximize business or further out from city centers as a cost-saving measure. Regardless of the destination, a law firm’s office relocation often involves more than simply packing boxes and forwarding mail to a new address.

These moves can present challenges, including the need to safely and securely transport old client paper files and transfer electronic files to new networks in a manner that minimizes cybersecurity risks. A law firm may use the office relocation as an opportunity to discard old files and update systems. The law firm and attorney alike can ensure they do not create any unnecessary risks by being cognizant of the ethical rules governing maintenance of files and client materials.

Categorizing Information and Materials

One of the first steps in the process of determining whether old files may be discarded or must be kept and transferred during a move is to consider how long such files must be retained. If client documents and materials do not need to be retained, then the law firm may safely and securely dispose of those materials. However, if the law firm is under an obligation to retain such materials at the time of office relocation, then they may need to incur the expense to securely transfer those materials.

Documents from closed files may generally be divided into three categories. In the first bucket are documents with special legal significance, including originals, accounting files, contracts, leases, and wills. Some law firms may elect to retain these documents for the minimum amount of time required by applicable law and state bar rules. For example, Rule 1.15(d)(5) of the California Rules of Professional Conduct provides that an attorney “shall … preserve records of all funds and property held by a lawyer or law firm … for a period of no less than five years after final appropriate distribution of such funds or property.”

Documents subject to a “legal hold” fall into the second bucket. Generally, these litigation holds are implemented when a pending legal action or government investigation may implicate the documents. Litigation holds may set forth what documents in the file are subject to the hold and how long the law firm is required to retain such documents. Many law firms will take extra care to retain the documents subject to a litigation hold in light of the significant ramifications that may come with destruction of such documents despite a hold in place.

The final catch-all category encompasses nearly all other documents. In deciding how long to keep such documents, many attorneys consider the statute of limitation applicable to legal malpractice claims. Although an attorney may not be required to retain such documents, they could nevertheless be useful to mount a defense to malpractice allegations related to the matter. Once the time period in which to bring a legal malpractice claim has expired, an attorney may then decide to no longer retain such documents so long as the attorney is not under any other obligation to retain them.

Attorney Obligations

Keeping track of files and papers in a move is also critical in light of attorneys’ obligations to maintain certain records after the end of an attorney-client relationship. For example, California Rule of Professional Conduct 1.16(e) provides that, “subject to any applicable protective order, non-disclosure agreement, statute or regulation,” an attorney “[u]pon the termination of a representation for any reason … promptly shall release to the client, at the request of the client, all client materials and property.” Rule 1.16(e) defines “[c]lient materials and property” to include “correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence … and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.” Thus, law firms may consider whether they have an obligation to maintain or return certain files that constitute “client materials and property.” A law firm may face a bar grievance as well as undercut their ability to defend against a legal malpractice claim if such documents have been destroyed.

However, a law firm is not under an obligation to maintain all records and papers indefinitely. But there is rarely a one-size-fits-all solution to finding the proper balance.

Additional Guidance

Law firms and attorneys may also consult the ABA’s additional considerations set forth in Informal Opinion 1384 for deciding how long to retain materials or documents.

1. Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or on behalf of the client, the return of which could reasonably be expected by the client and original documents (especially when not filed or recorded in the public records).

2. A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be useful to the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.

3. A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, is not otherwise readily available to the client and which the client may reasonably expect will be preserved by the lawyer.

4. In determining the length of time for retention of dispositions of a file, a lawyer should exercise discretion. The nature and contents of files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.

5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.

6. In disposing of a file, a lawyer should protect the confidentiality of the contents.

7. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.

8. A lawyer should preserve, perhaps for an extended time, an index or identification of the files the lawyer has destroyed or disposed of.

By being mindful of these issues, attorneys can make informed decisions about how long they need to maintain files and whether they can safely dispose of certain materials to clear up file space before a move.