I would be lying if I said that going paperless was easy. Making the journey to a mostly digital office has been troubling in so many ways that one article would not be enough to cover the multitude of ways that my staff and I have been inconvenienced. However, of the many issues and concerns we have experienced along the way, none compare to the knee-shaking anxiety of creating a paperless practice while trying to steer clear of violating the North Carolina Rules of Professional Conduct.

Going paperless sounds fun and exciting, but the most significant misconception, in my opinion, is evaluating how much paper you have gathered over the years. Every file, intake form, retainer, background check, medical record and medical bill adds up to a verifiable mountain of paper. However, when we began discussing the need to go paperless we didn’t just sit down and create a rough outline; we spent time planning for success.

Of the many decisions made to ensure our paperless success, the most helpful was to immediately amend all future retainer agreements so that new clients would be consenting to a reduced time period under which we would be obligated to keep their physical documents before destruction. This stopgap measure meant that new clients would not continue to add to the “paper problem.”

Before we began implementing our plan to go paperless, we spent a healthy number of hours evaluating our files and assessing our ethical requirements under the rules of conduct. By way of our efforts, the following information and this Client File Retention Calculator should be helpful in determining your law firm’s file retention policies.

What Are the Rules Regarding Client File Retention?

NC Ethics Opinion RPC 209 details when a closed file may be destroyed and governs the exceptions and limitations to the destruction of clients’ files and documents.

RPC 209 involves an inquiry from a lawyer who has practiced law for two decades and has run out of space in which to store clients’ physical files. The nature of the inquiry is effectively a request for clarification as to whether and when an attorney may dispose of or destroy closed client files. The answer to this inquiry, like that of most ethics opinions, is, “Yes, but….” Naturally, the qualification to this affirmative response is cause for concern.

First, the Bar opines that any client file is the property of the client and the lawyer is specifically charged with safeguarding the property of their clients. As such, a lawyer is responsible for storing, protecting and safeguarding a client’s file in a secure location where client confidentiality can be maintained.

NC Ethics Opinion RPC 209 states that “[s]ix years is the required minimum period for retaining a closed client file[.]” However, RPC 209 does disclose some other very interesting information related to this requirement. First, the “required six year” period of time is only required absent the client’s consent to a shorter period of time. Therefore, a client may consent to the destruction of their closed files within a shorter period of time or even immediately after closing the matter. However, absent this consent to a shorter period of time the closed file is required to be retained for a minimum of six (6) years after representation has concluded.

If your office is currently deciding what to do with all your files, RPC 209 may be the light at the end of tunnel. However, there are some very important factors or limitations to take into consideration. Most notably, RPC 209 also states that the statute of limitations should be a factor in determining when you may destroy your client’s files. As such, the applicable statute of limitations may require the retention of a closed file for more than above-mentioned six years.

When determining what cases or matters may be excluded or exempt from the six-year retention requirement, a prudent lawyer would give the following practice areas or matters special attention: estate, wills, trusts, cases involving minors or incompetents, criminal matters (likely to involve post-conviction relief) and other cases where the destruction of a client file would negatively affect the client’s rights or interests.

After the requisite six-year period of time, a lawyer is not required to notify the client that the file will be destroyed. However, it is important to note that certain documents and information should be systematically reviewed before destruction. You should pay particular attention to original documents that actually belong to the client—original documents with legal significance (such as contracts, wills, stock certificates, deeds and titles. These important and legally significant documents should be returned or saved from destruction in a safe and secure location.

Finally, if a particular case or client was problematic or may present issues for you in the future, it would be advisable to retain their files beyond the required six-year period of time.

Jared Pierce is the managing partner at Wallace Pierce Law proudly serving plaintiff personal injury clients across North Carolina. You can learn more about him and his practice at WallacePierce.com.

May 13, 2019/by SmallFirmandTech