Opinion 88-17
(May 1988)

In your letter of April 22, 1988, you have advised that your office has a large number of client files for which a lawyer, no longer with your firm, had responsibility. You have asked for guidance with respect to the disposition of those files.

While the Rules of Professional Conduct, effective in Pennsylvania as of April 1, 1988, do not provide any specific guidance, there may well be legal constraints of which you should be aware. In general, you should return files to the client, destroy all the files in accordance with the client's instructions or, if you are unable to locate the client or do not obtain any instructions, you should keep the files for as long as you believe it necessary to safeguard the client's foreseeable interests. In other words, the handling of the file totally depends upon the nature of the case, the contents of the file and your ability to contact the client.

Rule 1.15(a), which you referenced in your letter, is not directly on point. That pertains primarily to client funds and other like property (e.g., securities), rather than files. The obligation to keep records pertaining to those funds for a five year period after termination, is not, in our view, controlling as to the length of time one must keep client files.

The rule closest to the point is Rule 1.16(d), although it does not specifically provide the guidance that you seek. It states:

"Upon termination of representation, a lawyer shall take step to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law."

Just as the Committee is unable to give you specific guidance with respect to the various files, it is not in a position to judge whether your firm or the lawyer who left your firm has the responsibility of determining the disposition of and the storing of the files. The answers depend on the nature of the case, the content of the file and the understandings your firm and the lawyer had reached in the course of the representation of the client and in connection with the lawyer's departure.

In our view, you should review each file to determine the foregoing issues. For example, if in your review you locate certain types of original records (e.g., deeds, mortgages, promissory notes, etc.), they should not be destroyed and efforts should be made to return them to the client, or to store them until they clearly no longer have any legal significance.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.