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U.S. lawyers have to keep clients files for (six?) years.

What are accepted standards of file/document retention? Suppose they keep all their files in locked cabinets in an office building and there's a fire or earthquake that destroys the files. Has the lawyer done enough to protect the files despite "losing" them? Or are they required to add offsite and/or electronic backup?

Put another way, are U.S. lawyers held to "strict liability" for file retention or is it more of a "reasonable efforts" standard?

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This will vary by state. An excerpt from guidelines published by the Pennsylvania Bar Association, which quotes another ABA document, says in pertinent part:

Going beyond the issue of what is the client's property, and directly addressing the retention and destruction of files, the American Bar Association Committee on Ethics and Professional Responsibility has stated:

How to deal with the burden is primarily a question of business management, and not primarily a question of ethics or professional responsibility. A lawyer does not have a general duty to preserve all of his files permanently. Mounting and substantial storage costs can affect the cost of legal services, and the public interest is not served by unnecessary and avoidable additions to the costs of legal services. But clients and former clients reasonably expect from their lawyers that valuable and useful information in the lawyers files and not otherwise readily available to the clients will not be prematurely and carelessly destroyed, to the client's detriment.... We cannot say there is a specific time period during which a lawyer must preserve all files.... Good common sense should provide answers to most questions that arise.

ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 1384 (1977).

A thorough reading of the articles published in legal professional journals and periodicals on file retention and destruction reveals the following recurring, common recommendations:

  1. Lawyers and law firms should develop a detailed file storage, management and retention policy and should follow the policy consistently. The policy should address the return to the client upon the conclusion of the matter, case or transaction of all original documents such as business records, deeds, estate papers, title insurance policies and abstracts, and papers personal to the client. Such a policy should further include the direction of a closing letter to clients which notifies them of their entitlement to take any documents not previously furnished to them and may advise of a date on which the file will be destroyed in a manner which will protect the client's confidentiality.

  2. The decision on how and when to destroy part or all of a file should be made by a lawyer, not by an office manager, paralegal or other staff person.

Available here.

This 2003 document from the ABA discusses the topic at length, as well.

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