Many attorneys find themselves with wills, deeds, and other original client documents in their possession over the course of their law practice. These records often get stored in filing cabinets or bankers boxes for years without further consideration until the lawyer’s retirement or death. Those events are usually what prompt an attorney (or their personal representative) to call us for advice on file destruction.
Generally, the PLF recommends that attorneys store client records for a minimum of 10 years from the date they cease work on a matter. Certain client records, however, must be kept longer. For example, Oregon law outlines specific requirements that must be satisfied before an original will can be destroyed. If you find yourself grappling with the responsibility to safeguard original client documents, consider the following tips. They’ll not only protect your clients’ interests but will also streamline your document retention system, allowing you to “let it go” with confidence.
1. Return original documents to clients.
The PLF suggests that attorneys keep only a copy of original documents and promptly return the originals to the client. This is often easier said than done. Many clients feel more comfortable leaving important documents with their attorney rather than keeping them in their personal possession. However understandable, this is rarely the best course of action for either party. Consider the case of estate planning documents. Original wills and deeds are client property and must be safeguarded as such pursuant to the Oregon Rules of Professional Conduct. This obligation inevitably leads to additional storage costs and risk for attorneys who retain these records.
Clients, too, are disadvantaged by this approach. Many attorneys switch firms, change locations, or leave the practice of law altogether. In the process of these transitions, clients can lose continued access to their estate planning records, making it more difficult for family members to manage their affairs upon illness or death. The PLF receives numerous calls each year from individuals searching for their loved ones’ original wills. These documents are often difficult to track down unless a lawyer has kept diligent storage records and/or notified the PLF of their whereabouts if the attorney has moved or retired.
To prevent this unfortunate situation, review all of your client files—both current and closed—scan the entire file for your records, and then return any originals to the client. If a comprehensive file review is not feasible, adopt a “today forward” strategy where you promptly return original client records once a matter concludes. Also, include retention and destruction guidelines in your engagement letters and fee agreements. Clients will then know up front which documents they will be responsible for maintaining when the representation ends and when their records will be destroyed.
2. Review Oregon law and PLF guidance before destroying client records.
If you have original client documents, proceed with caution before destroying any records. Keep a permanent inventory of files you destroy and the destruction dates. For further guidance in this area, see our File Retention and Destruction Guidelines. ORS 112.815 specifically details the requirements for disposing of a will. The statute mandates that at least 20 years elapse before the will can be destroyed if an attorney does not know whether the testator is deceased. It imposes further conditions when an attorney knows that the testator has passed away. Additionally, ORS 112.820 stipulates the exclusive destruction procedure, including notice and affidavit requirements.
Violating any of these provisions exposes an attorney to the risk of liability for improper destruction; fortunately, ORS 112.825 also creates a safe harbor for lawyers who destroy a will in accordance with these statutes. Regardless of your situation, if you have possession of a client’s original will, review ORS 112.800 to 112.830 on the disposition of wills and any relevant case law carefully before destroying any client records.
3. Follow best practices for storing original documents.
Lawyers must ensure they have proper storage for all original client files they cannot return or destroy. Any paper documents should be kept in a fire-resistant and waterproof safe or cabinet in a secure location. Once your physical records are safely stored, develop an inventory system so you can easily access them when needed. Additionally, you should include a scanned version of the original document with the complete digital client file. This digital file must be properly stored and backed up to prevent any data loss. The PLF has a helpful practice aid about computer backup available here.
While it may seem like good client service to retain your clients’ original documents, avoid this practice when possible. Provide clients with tips to safeguard their records and remind them of the convenience of retaining custody over some of their most important documents. This approach will save both the lawyer and client frustration and expense in the long run.
Remember, by letting go of unnecessary clutter and implementing robust storage and retention strategies, you can truly "let it go" and focus on serving your clients effectively.
_dragonwithlaptop1681501312-18359.jpg)
