By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
In Illinois, there is no single rule that addresses whether attorneys are required to maintain client files and for how long. There are rules that require attorneys to keep certain kinds of documents but not the attorney's "file."
Illinois Supreme Court Rule 769 imposes a duty on lawyers to maintain two kinds of records. The first consists of "records which identify the name and last known address of each of the attorney's clients and which reflect whether the representation of the client is ongoing or concluded." Many lawyers are likely not aware that they must keep a record of the name and address of each client, whether it is a current or former client, or that this requirement does not have any time limitation. This section of the rule appears to require that such records be kept as long the lawyer remains licensed.
Rule 769 identifies a second group of records, and states that these must be kept for "a period of not less than seven years." These records are described generally as "all financial records related to the attorney's practice." These financial records include, but are not limited to, bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns and tax reports. It is significant and perhaps not well-known that, under the second part of Rule 769, time and billing records are included in the "financial records" that must be kept for seven years. Also, the bank statements that must be kept are not limited to statements for the lawyer's client trust account but any account related to the attorney's practice.
One of the Rules of Professional Conduct also requires the maintenance of certain records but, again, not the entire client file. Rule 1.15(a) of the Rules of Professional Conduct, titled "Safekeeping Property," requires that attorneys keep and preserve for seven years after termination of the representation of a client "complete records of client trust account funds and other property."
The Rules of Professional Conduct do not define what constitutes property that belongs to the client for purposes of Rule 1.15. Illinois State Bar Association Opinion 94-13 provides some guidance in the context of the duty to return to a client at the end of the representation all documents to which the client is entitled, pursuant to Rule 1.16(d). The opinion states that the client is entitled to the return of all original materials that the client provided to the lawyer. With respect to other parts of the lawyer's file to which the client is entitled to access, including copies of documents that the client received, the originals may be retained by the lawyer and the client may have copies at the client's expense.
Additional guidance is provided by Part 20 of the Code of Civil Procedure, Inspection of Records. 735 ILCS 5/8-2005, titled "Attorney's Records," provides that a lawyer must, upon request, permit the former client or his new attorney to examine and copy the file, except for attorney work product. The client must reimburse the attorney for the cost of copying the file within certain limits set forth in the statute. The opinion and the statute appear to contemplate that original materials provided to the lawyer by the client are considered client property, while the rest of the file is not, although the client is entitled to access to it. If that is the case, and if such documents constitute "client property" for purposes of Rule 1.15 as well as Rule 1.16, then under Rule 1.15, an attorney would be required to maintain records related to that client property. Perhaps keeping copies of those documents for the seven years required by Rule 1.15 would constitute compliance with the rule.
There is no rule addressing the maintenance or destruction of the file. For purposes of risk management, the period of time to keep materials depends on the circumstances surrounding those records. Keep in mind that the file is the most valuable weapon to defend against a civil claim or ARDC inquiry.
As a general rule, law firms should keep the files at least for the period of limitations applicable to legal malpractice actions, taking into account any applicable discovery rule. Non-litigated files should be retained for a period of time commensurate with the nature of the representation. The firm should consider the length of time within which a malpractice claim may be made and the period during which the records may affect the client or his intended beneficiary's duties and rights.
The seven-year period specified in Supreme Court Rule 769 and Rule 1.15 of the Rules of Professional Conduct is a good rule of thumb but should not be rigidly followed. There are reasons for keeping some documents for longer periods, such as estate-planning documents and real estate files. American Bar Association Informal Opinion 1384 suggests that lawyers create and keep a usable index of the content of the files that have been destroyed or discarded.
The opinion also suggests that, when portions of a file are destroyed or discarded, care should be taken to make sure that confidentiality is protected in compliance with Rule 1.6 of the Rules of Professional Conduct. The files or records should not just be placed in the trash but destroyed in a way that keeps them from being accessible to third parties.