Ethics Advisory Opinion 92-19
After termination of a representation, files often remain in the possession of the lawyer. Long-term retention of files requires substantial commitment of space and resources by the lawyer, even if a file is unlikely to be referred to again.
How long should a law firm maintain a file on the client's legal matter which contains only such items as copies of pleadings, copies of correspondence, copies of real estate closings documents, escrow account ledger cards, and copies of recorded real estate documents.
It is a question of substantive law as to who owns a client file. Materials in the file may be disposed of when there would be no prejudice to the client. The safest course is to enter into a reasonable agreement with the client regarding file retention.
The practical space limitations and costs of long-term file storage require that a lawyer be able at some point to destroy files that have not been claimed by the client and for which there is no reasonably foreseeable need. It is difficult, however, to specify a single time period, after which it is ethically permissible to dispose of unclaimed client files. The problem is caused in part by uncertainty as to what documents in a file are, as a matter of law, the property of the client.
To the extent that material in a file is the property of the client, then under Rule 1.15 it is appropriate for the lawyer to retain records of the property for six years after the end of the representation.
However, there is no minimum period for which the material of the file must be retained. File contents should not be disposed of until such time as it is reasonable to believe that their disposal will not prejudice the rights of the client.
Given the uncertainty as to when a lawyer properly may dispose of a file, we believe the more certain course is for a lawyer to reach agreement with the client as to when files will be disposed of the following the representation. The agreement should provide the client with reasonable notice of when a file will be destroyed and a reasonable opportunity to obtain materials to which the client is entitled prior to their destruction. As to whether a file is the property of the client, there are several cases in South Carolina that touch the issue. See In re Haddock, 283 S.C. 116, 321 S.E.2d 601 (1984); In re Crosland, 270 S.C. 546, 243 S.E.2d 198 (1978). However, in each of these cases in which the Court suggested that the file belonged to the client and should be returned to the client, the lawyer had neglected legal matters and the file was required to enable the client to pursue its rights. Those cases do not necessarily require a finding that the client owns the file for all purposes even after the satisfactory conclusion of a representation. In the absence of a clear answer to this issue of property law, we offer no opinion as the extent of the client's ownership rights since the issue is a matter of substantive law beyond the scope of our authority.