The State Bar Association of North Dakota Summer 2014 Gavel Magazine | Page 30
THE BASICS OF FILE RETENTION & DESTRUCTION
ALPS Risk Manager
Mark Bassingthwaighte,
Esq. has conducted
over 1,000 law firm risk
management assessment
visits, presented numerous
continuing legal education
seminars throughout
the United States, and
written extensively on
risk management and
technology. Check out his
recent seminar, Succession
Planning: Managing the
Transition from Start to
Finish, by visiting our ondemand CLE library at alps.
inreachce.com. He can
be contacted at: mbass@
alpsnet.com.
M A R K B A S S I N GT H WA I G H T E , E S Q .
[email protected]
The question most frequently asked of
ALPS risk managers is, “What do I need
to do with all these old files?” This article
shares a little advice to help those with
similar questions or concerns regarding the
destruction of client files.
The first step in file destruction is in
determining which files can be destroyed.
While we recommend that you keep your
files for a minimum of seven to 10 years,
you should check to see if your jurisdiction
has specific file retention rules or guidelines
as jurisdictions do differ on this point. If
the recommended storage time has not
passed, keep the file.
Even if the recommended storage time has
passed, you cannot simply get rid of all the
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THE GAVEL
files that fall into that category because
there are going to be exceptions that would
call for an additional amount of storage
time. The exceptions should include but are
not necessarily limited to the following:
• Files on which the malpractice statute
of limitation has not yet run (and don’t
forget about the doctrine of continuous
representation which can toll these
statutes);
• Files involving a client who was and
still will be a minor when the end of
recommended file retention period is
reached;
• Estate plans for clients who still are
alive;
• Files that contain agreements that
have yet to be executed or have not
been fully paid off when the end of the
recommended retention period has been
reached;
• Files that establish the tax basis of one or
more client assets;
• Adoption files;
• Support or custody files with continuing
support obligations;
• Files with renewable judgments;
• Corporate books and records of active
client entities;
• Files of clients convicted of a capital
crime; and
• Files of certain “problem clients.”