Proposed Formal Opinion Interim No. 19-0004 (Client File Release Retention)

The State Bar seeks public comment on Proposed Formal Opinion Interim No. 19-0004 (Client File Release Retention).

Deadline: July 10, 2026, 11:59 p.m. (60 days)

Direct comments to

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.

Background

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).

Discussion/proposal

Proposed Formal Opinion Interim No. 19-0004 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.

The opinion digest states: California Rules of Professional Conduct do not specify a fixed retention period for closed client files. A lawyer’s ethical obligations regarding file retention are primarily governed by: (1) the duties that arise from a lawyer acting as the bailee of a client’s papers and property; and (2) the lawyer’s duty to avoid reasonably foreseeable prejudice to the client.

In closed civil matters, absent an agreement to the contrary, client files should not be destroyed unless the lawyer has used reasonable means to notify the client of the intended destruction and provided the client with a reasonable time to respond. If a client cannot be located or fails to respond to reasonable notice, the lawyer may destroy items whose retention is not otherwise required and whose destruction would not cause reasonably foreseeable prejudice to the client. Items the lawyer believes are reasonably necessary for the representation may be preserved in electronic form only, unless the loss of physical copies would prejudice the client’s rights. However, original documents, property furnished to the lawyer by the client, and items of intrinsic value must be retained and cannot be discarded or destroyed without the client’s consent.

In closed criminal matters, absent an agreement to the contrary, client files should not be destroyed without the client’s consent while the client is alive.  Because files in criminal matters may have future vitality even after judgment, sentence, and appeals, a lawyer should retain them for the life of the client, absent a contrary agreement or consent. Closed files in criminal matters may be retained electronically, unless retention of the physical item is required by law or its nature requires physical preservation (i.e., physical evidence). However, as with civil files, original documents, property furnished to the lawyer by the client, and items of intrinsic value must be retained and cannot be discarded or destroyed without the client’s consent.

At its May 1, 2026, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 19-0004 for a 60-day public comment distribution. 

Any fiscal/personnel impact

None

Background materials
Source

State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC)

Deadline

July 10, 2026, 11:59 p.m.

Direct comments to

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.

For further questions, please email communications@calbar.ca.gov.