Destroying Old Files

Reprinted from Washington State Bar News, February 1985, pp. 26-28

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The Law Office Economics and Management Committee receives more inquiries on the subject of destroying old files than on any other.  One recent inquiry from one of the ten largest firms in the state would indicate that a policy should be established and placed in the office manual?

A natural corollary to destroying old files is transferring inactive files to dead file storage.  Many attorneys now recognize that the once common practice of never throwing anything away is no longer practical.  Storage space is neither infinite nor cheap for most of us, to say nothing of the burden we are placing on our successors to go through the files upon our demise or departure.

The micro solution

Some attorneys suggest that the solution to the file retention problem is to put some or all items on microfilm.  This does not solve the problem, but rather begs the question.  The question is, how long should the file be retained, and what material should be retained in the file?

For some of us, microfilming is a very efficient way of addressing the problem of file retention.  On the other hand, those who microfilm should keep in mind that the law does not allow certain documents to be microfilmed, e.g., naturalization records and certificates of citizenship.

In addressing the problem, we should remember what our experience tells us, that the attorney?s need to retrieve information from old files is minimal.  In many cases, such files are more helpful to another attorney outside the firm or to a former client.  All of us should agree that it is not the attorney?s duty to serve as a depository for current or former clients.

Self destruction

Various procedures have been developed by attorneys over the years in establishing a policy for file retention.  Some firms mail a letter to the last known address of a client after a period of years (e.g. six) and advise the client or former client that the file will be destroyed after five months if the client does not come to the office and pick up or otherwise take possession of the file.  Another alternative often advocated is for the responsible attorney to analyze the contents of the file and reach a decision as to what should be retained, for how long, and then ultimately destroyed.

Ideally, the file should be constructed in such a way that it ?self-destructs?; that is to say, as each document is filed its destruction is predetermined at that time.  Obviously, this is an ideal situation and, as a practical matter, likely never or almost never happens.

Some items can be destroyed as the file evolves.  For example, some cover letters asking for information can be destroyed when the information is received.  Letters notifying the client of the time and place of a deposition, for example, serve no purpose once the deposition has taken place.

Stripping

At the time the file is closed, the file should be stripped.  All duplicate copies of materials in the file can be destroyed and many original documents can be returned to the client.  Copies of depositions and other documents can be given to the client, obviating the need for the client to retain those items in the file.

Obviously, memoranda of authority may be valuable, but more appropriately belong in the attorney?s brief bank.  The object of stripping the file at closing is to rid the file of all nonessential and duplicate material, and to transfer all possible essential material to the client.  There is no need to retain documents which the Court files contain.

On the other hand, the file should contain a record of the materials delivered to the client.  In many instances, the attorney will want to keep a copy of the transmittal letter to the client advising the client of the duty of safekeeping.

At the time the file is being closed, the responsible attorney should determine how long the file is going to be kept before it is destroyed.  The attorney will want to consider the following factors:

(1) applicable statute of limitation;
(2) age of majority of any minors;
(3) need for information in the future, i.e. 706 tax return in order to determine income tax basis in future years and real estate legal descriptions which are not recorded; 
(4) malpractice and business concerns, i.e. recommendations to clients, warning letters and opinion letters;
(5) legally imposed requirements for record retention; and
(6) time requirements for appeal.

Set a schedule

Some firms destroy certain categories of files at the end of a fixed number of years, while others obviously retain stripped-down files permanently.  Some firms establish categories plus permanent retention, i.e. ten years, fifteen years, and permanent.

Depending upon your practice, variety of work (and, obviously), personal opinion and storage availability, the schedule will differ.

An illustrative schedule is provided in Figure 1.  Once the attorney has determined how long a file should be kept, the file should be reviewed again at the time it is destined for destruction to make sure there has been no intervening event which would change its status.

Each file marked for permanent retention should be reviewed every ten to twenty years to again be sure that intervening events have not changed the retention need.  Some attorneys think that if a file is to be retained permanently, the attorney should reduce to writing the justification for that fact and have that writing placed in the file.