Missouri ethics rule 4-1.22 provides that a lawyer must maintain the client’s file for six years after completion or termination of the representation. The lawyer must maintain the file for longer than six years if there is a legal malpractice claim or ethics complaint pending; or if there is any other pending civil or criminal litigation or governmental investigation related to the representation. Items of intrinsic value, like the client’s personal items, or original documents, such as a will or trust, should be maintained by the lawyer indefinitely or returned to the client. We recommend lawyers maintain files relating to the representation of, or claim by, a minor until the statute of limitations runs on the minor’s claim, even if the claim was already settled. The rules for maintaining trust account records are set forth in Rule 4-1.145 to 4-1.155 and are not affected by Rule 4-1.22.
Rule 4-1.22 also provides that client files, except for items of intrinsic value, may be maintained by electronic media provided that printed copies can be produced, and the records are readily accessible to the lawyer. These days, most lawyers maintain their files electronically.
Beyond the ethical rules, there are good reasons to maintain files in a way that can be retrieved easily. If a client asks for their file because they want to change lawyers or make a claim against you, you need to quickly provide the file or potentially face a bar complaint or lawsuit. Even though most lawyers communicate with clients and opponents by email, many lawyers neglect to put those emails in the client file. They just leave the emails in their email box. That can create a nightmare if the file needs to be produced to the client. To produce the emails, the lawyer will have to do a forensic search of the emails to find all emails relating to the client’s representation. That can be time-consuming and expensive. If several lawyers worked on the case, all their emails will need to be searched, and it is critical to review the emails before production to make sure nothing is produced related to other clients. It is best to use case management or document management software to maintain your emails along with all other documents related to the representation of the client. By filing all documents related to the representation in a software database, you will be more organized during the representation, and you will save a lot of time if the file must be produced later.
These days, many lawyers communicate with their clients by text message. It is not easy to save text messages in your legal file, but you are required by the ethics rules to do that, and if you get sued by the client, you may need those text messages to defend yourself. If you don’t have an easy way to save your text messages to your legal file, you should not use text messages to communicate with your client.
Many legal malpractice lawsuits could be avoided by having just one communication confirming your discussion with the client. Keeping a complete file can help avoid lawsuits.
Steven Schwartz is a certified mediator with Miles Mediation & Arbitration and a principal at Brown & James in St. Louis. He has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 35 years. He can be reached at sschwartz@bjpc.com. The views expressed in this article are not intended to be taken as legal advice.