The State Bar seeks public comment on Proposed Formal Opinion Interim No. 19-0004 (Client File Release and Retention Duties).
Deadline: October 11, 2022
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 Standing 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. 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. 19-004 considers:
What are the ethical obligations of lawyers with respect to retention and destruction of client files, materials, and property 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 section 6068, subdivision (e), and 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. A lawyer’s file retention duties generally turn on the lawyer’s obligations as the bailee of the client’s papers and property and the lawyer’s duty to avoid reasonably foreseeable prejudice to a former client. If not returned to the client, original documents, property furnished to the lawyer by the client, and items of intrinsic value must be retained by the lawyer and cannot be discarded or destroyed without the client’s consent. In civil matters, absent an agreement to the contrary, other client materials and property may only be destroyed after the lawyer uses reasonable means to notify the client of their intended destruction and gives the client a reasonable time to respond. If a 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 client. Items that the lawyer believes are reasonably necessary to the representation may be preserved in electronic form only, unless the lawyer believes the loss of physical copies will prejudice the rights of the client.
In closed criminal matters, absent an agreement to the contrary, client files should not be destroyed without a client’s express consent while the 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. California Penal Code section 1054.9(g). 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 a 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. 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 29, 2022, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 19-0004 for a 60-day public comment distribution.
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Committee on Professional Responsibility and Conduct
October 11, 2022