what kind of clients document should an attorney save in the new york state

Who is entitled to the lawyer’s “entire file?

Jun 09, 2020 · DIGEST: With certain important exceptions, a lawyer has no ethical duty to retain closed client files (or other documents held by the lawyer owned by third parties) for an indefinite period when neither the client nor the third party requests their return. The exceptions are original documents of intrinsic value such as wills, deeds, or negotiable instruments, as well as …

Is it ethical for an attorney to retain client files?

In N.Y. State Bar Ethics Op. 623 (1990), the Ethics Committee described these papers as “documents in need of salvaging,” or “DINS” — that is, “documents…that the lawyer or the client is required by law to maintain or…that the client would foreseeably need to establish substantial personal or property rights…”

How long do lawyers need to keep documents?

In sum, when a lawyer agrees to preserve an original will, the lawyer should make every effort to clarify precisely what the lawyer will and will not do in the event of the client’s death. The understanding between lawyer and client should be confirmed in a detailed memo, a copy of which is given to the client.

Do lawyers have to preserve a client’s will?

ethical obligations by delivering such documents to the client for safekeeping along with the client's file. The lawyer should keep them himself. Ops. 460 and 623. This is not necessarily so with respect to documents a client is obligated to keep. Like a lawyer, a client's duty to retain documents may arise from several sources, e.g.,

What documents belong to the client?

Documents generally belong to the client in the following circumstances: The document existed before the client employed the lawyer and the client sent the document to the lawyer. The lawyer prepared the document for the benefit of the client.

How long do attorneys have to keep files in NY?

seven yearsDisciplinary Rule 9-102(D) of the Code of Professional Responsibility requires lawyers to keep certain documents for “seven years after the events which they record…” These records include such things as trust account records, copies of all retainer and compensation agreements, bills to clients, and records of payments ...

What constitutes a client file?

As defined in the new rule, the term “client file” includes items such as papers supplied to the lawyer by the client; correspondence (whether physical or electronic); pleadings; investigatory or discovery documents; intrinsically valuable documents such as wills, trusts, deeds and securities; and copies of the ...Sep 1, 2018

How long should lawyer retain files?

Rule 119.37 of the Rules of the Law Society of Alberta requires law firms to keep financial records for ten years, following the fiscal year in which the file was closed. Only those parts of client files which are required to support the prescribed financial records must be retained.

How long does an attorney have to keep client files in New Jersey?

seven yearsWhile New Jersey has not adopted the ABA's proposed amendment to model RPC 1.6, existing RPC 1.15(a) plainly requires attorneys to preserve client prop- erty, including documents, for a period of seven years.Dec 30, 2013

What happens to files when a law firm closes?

When a law firm goes bankrupt, the estate has the legal obligation to notify all former clients that they can either take steps to retrieve their files or give the estate the authority to destroy them.Feb 26, 2012

What is in a client file attorney?

The rule, Rule 1.16, clarifies this as “correspondence, pleadings, deposition transcripts, experts' reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client's representation, whether the client has paid for them or not ...Jan 14, 2019

What is considered client property?

f) “Client Property” means original documents and documents prepared for the Client's benefit which the Member has been retained by the Client to prepare.

Where do I put client files?

Paper-based copies of client records, including progress notes, should be kept in lockable storage such as a filing cabinet or cupboard, or in secured access areas when not in use; 2.Sep 2, 2016

How long should you retain a client files?

Generally, based on the provisions of the Limitations Act, 2002, an appropriate retention period for client files is 15 years after the file is closed.

What is a file retention policy?

A data retention policy is a set of guidelines that helps organisations keep track of how long information must be kept and how to dispose of the information when it's no longer needed. The policy should also outline the purpose of processing personal data.Jan 11, 2021

How long should you keep client files?

five yearsThe Los Angeles County Bar Association concluded that a civil attorney should retain potentially significant papers and property in the former client's file for at least five years analogous to Rule 4-100(B)(3) of the California Rules of Professional Conduct, which requires an attorney to maintain all records of client ...

The File Belongs to the Client

Files belong to clients, not to lawyers. A client who has paid a lawyer’s bill is entitled to the lawyer’s “entire file” except for certain internal law firm documents. Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn [97 N.Y. Int. 0208 (12/2/1997)]. Before you destroy any file, therefore, you must offer it to your client.

What Should You Keep?

Every file contains four categories of items: (1) items you must keep to comply with the Code of Professional Responsibility: (2) items you must keep to fulfill your fiduciary’s duties to your clients; (3) items you need to enable you to check for conflicts of interest that may arise in the future: and (4) items you may wish to keep to protect yourself and your firm in case you are later charged with wrongdoing.

How Long Should You Keep Closed Files?

In deciding how long to keep closed files, there are three main considerations. First, as mentioned above, DR 9-102 (D) requires you to keep certain bookkeeping records for seven years. Second, in 1996 the statute of limitations for legal malpractice actions in New York was shortened to three years.

What to Destroy

When you do destroy old files, remember that DR 5-108 (A) (2) requires you to preserve client confidentiality absent that client’s informed consent to waive it. You should not simply throw your old files in an ordinary garbage can.

Can a lawyer send a letter to a client?

For example, the lawyer can send a letter to each client’s last known address asking the client either to pick up his files or to give permission for the lawyer to destroy them. (If the client’s address is not available, the lawyer may publish a notice in the local newspaper.) That all sounds fine.

Can a lawyer keep a will?

If clients cannot be located, the lawyer must retain the will in safekeeping indefinitely or in accordance with law. The lawyer has three basic choices: (a) The lawyer may send the original wills not storage, provided they are indexed and maintained in a manner that will protect client secrets and confidences.

Why is timely destruction important?

Timely destruction of valueless records offers a low-cost way to reduce the amount of space used for record storage. A records retention program provides a “back door” for your records by eliminating the accumulation of valueless records.

What is the purpose of an attorney engagement?

The goal of the engagement is the litigation, settlement, preparation of legal document, obtaining legal advice, etc.

Which bar associations have ethical opinions on the retention of client files?

The L.A. Country Bar Association [1], the American Bar Association [2], the New York State Bar Association [3] and other bar associations have issued ethical opinions related to the retention of client files by attorney. These opinions unanimously support the establishment of a records retention program and the ultimate destruction of client files.

Is the ABA opinion binding?

Although the ABA opinion is “informal” and not binding, this opinion and others place severe procedural burdens on the retention program including: The duty to inspect and screen the client files before destruction. The duty to client property prior to destruction. The duty to protect client confidences.

What are the rules of professional conduct?

The Rules of Professional Conduct and bar association ethical opinions do not address any duties or requirements for maintaining the client files including form of records, content of files and filing methods. These issues are left totally to the professional judgment of the attorney.

Does the Rules of Professional Conduct address retention of client files?

The ABA opinion cited above correctly states that the Rules of Professional Conduct does not address retention of client files. Here’s a sampling of the provisions from the ABA and California opinions that address the issue:

What happens if a client does not complete the work?

If the work is completed and documents required by the agreement are provided to the client or other designated parties, the appropriate fee is to be paid. If the work is not completed, the client may bring legal action.

Is a POA valid?

The new legislation creates a presumption that a POA form is valid and permits courts to award damages. Allowing damages will apply only to unreasonable denial to accept an agent’s authority under a statutory short form POA that substantially complies with the statute.

What is the POA form?

Elimination of the Statutory Gift Rider: In general, the POA form is an intricate document made up of two distinct parts, the POA Statutory Short Form and the SGR. Currently, the SGR Form is a separate optional form used if the principal desires to authorize the agent to make gifts of the principal’s assets.

What is a power of attorney?

The power of Attorney gives legal authority to another person (called an Agent or Attorney-in-Fact) to make property, financial and other legal decisions for the Principal. A Principal can give an Agent broad legal authority, or very limited authority. The Power of Attorney is frequently used to help in the event of a Principal's illness ...

Is a power of attorney good?

Powers of Attorney are only as good as the Agents who are appointed. Appointing a trustworthy person as an Agent is critical. Without a trustworthy Agent, a Power of Attorney becomes a dangerous legal instrument, and a threat to the Principal's best interests.

What is a springing power of attorney?

A "Springing" Power of Attorney becomes effective at a future time. That is, it "springs up" upon the happenings of a specific event chosen by the Power of Attorney. Often that event is the illness or disability of the Principal. The "Springing" Power of Attorney will frequently provide that the Principal's physician will determine whether ...

Peter Christopher Lomtevas

I give my clients a choice: as for an affidavit that goes into a case file, they can go and pay $2 for a notarization or they can get one from me for free. They always choose to save the $2.

Mary Katherine Brown

The lawyer/client relationship does not affect the propriety of a notarization.

Eric Edward Rothstein

Lawyers often notarize their client's signature. One time a lawyer should not be the notory is when the lawyer benefits from the document such as a power of attorney that gives the authority to the attorney.

Steven Warren Smollens

It is usual and ordinary for an attorney to notarize a client's affidavit in a litigated event.