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 30 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.”