The State Bar Association of North Dakota Summer 2014 Gavel Magazine | Page 31

Because there are so many exceptions, every file should be reviewed
before being okayed for destruction.
When you originally closed any given file, you should have
separated out all of the original documents that belonged to the
client and saw that they were returned. If this was never done,
be certain to do so prior to having the file destroyed. As files
are reviewed one final time keep in mind the following list of
documents, which are the documents that should never be destroyed
or discarded. They are documents that clearly or probably belong
to the client; original documents; any other documents that the
client may need or reasonably might expect his lawyer to preserve,
and every file’s letter of closure. The letter of closure is an important
document to retain because it can help clarify whether or not a
conflict of interest is in play later on. If closure letters are destroyed,
you take away your ability to provide documentation that an
inactive client is actually a past client. The ramification of this is you
now may be prevented from benefiting from Rule 1.9 of the Rules
of Professional Conduct, also known as the “Former Client” Rule.
To varying degrees, in most jurisdictions the file is viewed as client
property. This means that you should follow any client’s given
instructions as to the final disposition of their file. If you did not
obtain those instructions when their file was closed, you should try
to do so prior to having their file destroyed. You could simply try
sending a letter to the client’s last known address although on older
files this may prove problematic. Due to the problem of locating
clients on files closed years ago, more and more firms place in their
engagement and/or closure letters a short paragraph that discusses
the firm’s file retention policy so as to avoid this problem on a going
forward basis.

If you need to send the client such a letter years after closing the
file, you might consider designing a letter based upon this sample
language.
Our law firm destroys files [number of ] years after they are
closed. We have retained your file for that period of time and are
now preparing to have it destroyed. If your desire is to have us
continue to store it or see that it is returned to you, you must send
us a letter telling us of your desire and this must be done no later
than seven days after the date you receive this letter.
Once you learn your client’s wishes, carry them out. If you are going
to destroy a file, make sure you follow through with the notion of
destruction. “Destruction” does not mean tossing all the old files
in a dumpster out back and, yes, this does need to be said. Take
the necessary steps to have old files incinerated or shredded. You
cannot compromise your client’s confidences, even during the file
destruct