The State Bar seeks public comment on Proposed Formal Opinion Interim No. 19-0004 (Client File Release and Retention Duties).
Deadline: November 10, 2021
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
The State Bar Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with applicable State Bar policy and procedure, the committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which went into effect on November 1, 2018. California Rule of Professional Conduct 1.16 entitled “Declining or Terminating Representation” and Rule 3.8 entitled “Special Duties of a Prosecutor,” were amended effective June 1, 2020. Information about the new rules is available here. Proposed Formal Opinion Interim No. 19-0004 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 19-0004 considers:
How long is a lawyer ethically obligated to retain client files in closed civil and criminal matters? What ethical obligations does a lawyer have with respect to the destruction of former clients’ files in closed civil and criminal matters?
The opinion interprets rules 1.4, 1.15, 1.16, and 3.8 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068(e) and 6149; Penal Code section 1054.9(g).
The opinion digest states: California Rules of Professional Conduct do not specify a fixed retention period for closed client files. In closed civil matters, a lawyer’s file retention duties generally turn on the lawyer’s obligations as the bailee of the former client’s papers and property and the lawyer’s duty to avoid reasonably foreseeable prejudice to the former client. Original documents and property furnished to the lawyer by the former client and items of intrinsic value must be retained by the lawyer and cannot be discarded or destroyed without the former client’s consent. Other client materials and property in civil cases may be destroyed, absent a contrary agreement, after the lawyer uses reasonable means to notify the former client of their intended destruction and gives the former client a reasonable time to respond. If the former client cannot be located or fails to respond to reasonable notice of intended destruction of the file, the lawyer may destroy items whose retention is not required by law and is not necessary to avoid reasonably foreseeable prejudice to the former client. Items that the lawyer believes are necessary to avoid reasonably foreseeable prejudice to the former client may be preserved in electronic form only, unless the lawyer believes the loss of physical copies will injure the former client.
In closed criminal matters, absent an agreement to the contrary, client files should not be destroyed without the former client’s express consent while the former client is alive. California Penal Code section 1054.9 requires trial counsel to retain a copy of a client’s files for the term of imprisonment where the client is convicted of a serious or violent felony resulting in a sentence of 15 years or more. Cal. Pen. C. § 1054.9(g) (amended Stats. 2018, Ch. 482; eff. Jan. 1, 2020). Section 1054.9, however, concerns a criminal defendant’s access to discovery materials post-conviction in certain cases and does not address or govern a lawyer’s ethical obligations with respect to closed client files. Because files relating to criminal matters may have future vitality even without conviction, and even after judgment, sentence and appeals, absent a contrary agreement or client consent, a lawyer should retain the files for the life of the client. At a minimum, a lawyer should not initiate the destruction of client files in closed criminal matters until the expiration of the sentence, all appeals, or any statute of limitations on actions against the lawyer, whichever is longest. The contents of the closed files in criminal matters may be retained in electronic form if every item is digitally copied and preserved, unless retention of the physical item is required by law or the item, by its nature, requires preservation in physical form, i.e., physical evidence.
At its July 30, 2021, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 19-0004 for a 90-day public comment distribution.
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Committee on Professional Responsibility and Conduct
November 10, 2021