If the client can not be located or the client is deceased.
Here, in California, like many jurisdictions there is no clear number of years. The State Bar is not even that much help in guiding. It was once thought 5 years was sufficient for some documents but estate planning originals will have to be kept until they are needed. The Rules of Professional Conduct and State Bar Act do not specifically direct how long an attorney should keep a client's files. But rule 4-100(B)(3) requires records regarding entrusted client property and funds to be maintained five years after the last funds and property has been disbursed to the client.
Given that an attorney's closed files may contain "client papers and property" to which the former client is entitled, the attorney's ethical obligations in regard to these items, in the absence of an agreement to the contrary, are the following:
As to original papers and property received from the former client, including estate planning documents delivered to the attorney pursuant to the Probate Code, the attorney's obligations are determined by the law of deposits (bailments), Civil Code sections 1813 to 1847 and Probate Code sections 700 to 735.
As to other client papers and property to which the former client is entitled under rule 3-700, before disposing of the items, the attorney first must use all reasonable means to notify the former client of the existence of the file, of the former client's right to examine and retrieve the contents, and of their intended destruction. While there is no specific authority as to what such a notice should contain, the purpose of the notice will be advanced if it states plainly that the files in question will be destroyed unless contrary instructions are received by the attorney by a specific date, and gives a reasonable opportunity to respond.
If the attorney has no reason to believe that the items proposed to be destroyed include things required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items.
If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. The balance of the file may be destroyed.
The attorney at all times must protect the confidentiality of the contents of the files, including the fee agreement. (Bus. & Prof. Code, §§ 6068, subd. (e), 6149.)
There are some documents that you cannot destroy without the client's permission or notice to the affected client, including documents of intrinsic value or significant pecuniary value or any documents required to be deposited in court pursuant to Probate Code §§700, et seq.
What documents must be deposited in court? An original will, declaration of trust, trust amendment or other original document modifying a will or trust; a signed original power of attorney; a signed original nomination of conservator; or any other signed original instrument that the attorney and depositor agree in writing to place on deposit (Prob. Code §700 et seq,).
It was old school thinking that keeping the originals meant future work when the clients died and the families came for the original, then maybe hiring the firm for the work. The reality is, keeping originals is a very bad idea for all the reasons implied by your question and above.
It is wiser for the Client to hold the original documents. The attorney can keep a copy but State law normally is specific about how long an attorney can keep documents (i.e. 7 years) before the attorney's copy can be destroyed. As just one example a Living Trust Estate Plan should be kept in the hands of the Trustee (normally the client), with the attorney keeping a copy of the signature (execution) and an electronic copy of the document itself. But after the statutory period, copies may be destroyed. The original should always be in the hands of the client held in a safe place (i.e safe deposit box etc).
In Michigan, we need to hold documents indefinitely, however, once notified of the death of a client, any original Will needs to be filed with the probate court, as soon as reasonably possible.
If the attorney undertakes to hold onto the clients' original documents, this creates an obligation on the part of the lawyer that is extremely serious. I would not want to have that responsibility, so I do not hold onto original documents.
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