Rule 1.15 of the New York Rules
The current New York Rules of Professional Conduct require licensed New York Attorneys to keep most client records for a Minimum of Seven Years after the date of the events of record. Most of these files may be maintained in electronic form.
What’s the risk?
- “A lawyer who does not maintain and keep the accounts and records as specified in and required by this rule, or who does not produce any such records pursuant to this rule shall be deemed in violation of these rules and shall be subject to disciplinary proceedings.” [Rule 1.15]
- The records required to be maintained by the rule must be made available and produced in response to a request from the appropriate disciplinary committee or Appellate Division.
- Market Risk: Client may ask for documents or you may be required to produce documents in connection with client litigation. You may be seen as sloppy, unreliable, unprofessional or worse…uninformed or out of date with regards to technology if you cannot produce them in a timely fashion.
General Rules:
“Client Property” Must be returned to the client or maintained indefinitely:
A: What is Client Property?
1. “That which the client has entrusted to the attorney, such as original documents, photographs and things.“
2. “that which has been created or obtained by the attorney as part of the undertaking and for which the client retained the attorney.” Such as original wills, trusts, deeds and executed contracts.
How to Maintain Your Data Properly to avoid becoming a Statistic?
The Best Approach:
Make a copy or scan an electronic copy of any of these types of materials and then return the original to the client.
If You Choose to Keep Original Documents For Your Client:
- You must safeguard that property; keep it in a locked office, in a safe box …
- Files with client property must be properly segregated so that they are not destroyed as you will need to maintain them indefinitely.
Everything else (non-client property) must be maintained for seven (7) years after the representation has ended.
Except
- Criminal case files must be maintained for the life of the defendant.
- To the extent that your file contains information that your client is required to maintain pursuant to state or federal law you must also maintain that file for as long as required by that state or federal law which is applicable to your client.
OSHA requires medical records pertaining to employees exposure to toxic substances be retained for the duration of the employment plus 30 years. If you were involved in an OSHA litigation and you have that information in the file you may be required to keep it for over 30 years!
Stay tuned for Part 2 to be continued in our next post…
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