How long does a Tennessee lawyer have to retain client files?
This is the most common question received by ethics counsel for the Tennessee Board of Professional Responsibility.
On December 11, 2015, the Board issued Formal Opinion 2015-F-160 in order to provide guidance for lawyers on that very question.
Tennessee Rule of Professional Conduct 1.15 is the foundation for the lawyer’s obligation to
maintain client records, which states in pertinent part:
(a) A lawyer shall hold property and funds of clients or third persons that are in a lawyer’s possession in connection with a representation separate from the lawyer’s own property and funds.
(b) ….property shall be identified as such and appropriately safeguarded. Complete records of such … property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(d) … Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client … any property that the client … is entitled to receive and, upon request by the client…, shall promptly render a full accounting regarding such…property.
Because of ambiguity about when a matter is concluded for purposes of RPC 1.15, there is no one safe answer to the central question of how long must the closed files be kept before they are destroyed.
It is clear that a divorce without children is concluded at the time of the final decree of divorce is entered or the action is dismissed.
If child custody is involved, the matter is not concluded for purposes of RPC 1.15 until the date the last child turns 18 years old.
The wise lawyer will retain closed files for at least six years after the representation is concluded. That is the usual statute of limitations for contract claims in Tennessee.
Lawyers may also seek recommendations on file retention from their malpractice carriers.
Regardless of how long client files are retained, the confidentiality of the files must be maintained.
If you want to read more, click here to read the entire opinion.
K.O.’s Comment: What about matters involving the creation of prenuptial agreements? The opinion doesn’t say. I’ve always thought those files should be maintained until the marriage ends through divorce or death. If anyone knows, please share by commenting below.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.