Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 4
Retaining Records: What and for How Long?
By Carol Garfiel Freeman
The filing system used by Eduardo Balarezo, including the lists of boxed contents, will enable him easily to locate a particular closed file. If a client is convicted following a trial, portions of the file including court filings, discovery documents, copies of correspondence with the prosecutor, and any transcripts will be provided to the appellate attorney. After the appeal is concluded or if no appeal is taken, the lawyer may deliver these documents to the client or, if the client prefers, retain these materials in the lawyer’s files. After a while, though, the storage unit will become cramped and the lawyer will have to decide what to preserve and what to discard.
Two considerations enter into this decision: ethical requirements and the possible need to consult the files in the future to support a challenge to a conviction, to explain the circumstances of the case in some other (possibly civil) context, or to defend against a claim of ineffective assistance of counsel.
I practiced criminal law as both a defender and prosecutor for many years and know a lot about old files. Much of my practice was in the Washington, D.C., area where the ethical obligations of a District of Columbia lawyer with respect to disposition of a client’s property were recently discussed in detail by the D.C. bar’s Legal Ethics Committee. (Opinion No. 283 (1998).) In short, the lawyer must return "valuable property" such as settlement agreements, securities, etc., to the client, and otherwise must attempt to obtain instructions from the client as to whether to hold, return, or destroy the remaining files. The ethics committee concluded that if the lawyer is unable to obtain instructions, and retention is not "reasonably practical to protect [the] client’s interests," some files may be destroyed by shredding or another secure method when five years have passed since conclusion of the representation. Certain files, however, should be retained beyond the five years—for example, documents that the lawyer "has a legal obligation to preserve" (not otherwise described in the opinion), original nonpublic documents provided by the client, and information that "may still be necessary or useful in the assertion or defense of the client’s position" in a matter not barred by the statute of limitations. Moreover, the opinion notes that the lawyer should retain, "perhaps for an extended time," a list identifying the documents destroyed or otherwise disposed of. Practitioners, of course, should consult the rules in their own jurisdictions before disposing of client files.
Ethical considerations aside, criminal defense lawyers should preserve certain files to protect both themselves and their (former) clients. The lawyer should include a cover letter listing all files delivered to another lawyer or returned to the client, and should retain copies of such letters. Moreover, unless the lawyer is certain that the client is no longer in custody or in jeopardy of further incarceration, he or she should retain indefinitely all time sheets and notes of conferences with the client and witnesses, and copies of all pleadings filed on the client’s behalf. I recently received a letter from bar counsel stating that a client I’d represented in an appeal eight years earlier had complained that I would not send him the transcript and other papers in his case. Fortunately, I have never discarded a file (perhaps an extreme position, and my husband deplores the lack of space in our basement for other uses.) I located the file, which included a copy of a letter listing the documents I’d sent the client after the Supreme Court had denied certiorari, and a receipt from a relative who had picked up the transcript years earlier at the client’s request. I sent copies of the letter and the receipt to bar counsel and to the client, to whom I also sent additional copies of the various motions and briefs I had filed for him. Bar counsel was easily satisfied and I heard nothing more from the client. Another client filed a claim of ineffective assistance of counsel when he was incarcerated on a probation violation several years after the case was over. Because I still had my file, including time sheets, notes, and letters, I was able to reconstruct my meetings with the client in preparation for testimony at a postconviction hearing. The judge rejected the claim of ineffective assistance of counsel.
With the increasing use of technology, it will be easier to retain copies of documents generated by the attorney, assuming the technology does not become obsolete. In an abundance of caution, however, you may decide to save your files (at least in the more complex cases) for much longer than the five or six years required by ethical rules. And of course there are those special cases in which you obtained an acquittal or reversal for a clearly innocent client. Those files you will retain forever—and consult when you retire and write your autobiography, which is certain to be a bestseller.
Carol Garfiel Freeman is staff attorney with the United States District Court in Washington, D.C. She is also a former chair and current member of the Criminal Justice editorial board and the Section’s Book Committee, and a member of the Section Council.