Effective September 1, 2018, the Massachusetts Supreme Judicial Court provided guidance on the retention of law firm client files in Rules of Professional Conduct, Rule 1.15A: Client files. This clear guidance is essential to Massachusetts law firms eliminating or destroying their off-site files that are costly to store and an administrative nightmare to maintain. While most law firms don’t have the resources needed to complete this project, the hiring of a professional records consulting firm to do so, is money well spent, and the long-term savings are straight to the bottom line. The Rule starts by identifying what a record is. It goes on to address the time frame and conditions for retention.

(c) Except for materials governed by paragraphs (d), (e) and (f), a lawyer shall take reasonable measures to retain a client’s file in a matter until at least six years have elapsed after completion of the matter or termination of the representation in the matter unless (i) the lawyer has transferred the file or items to the client or successor counsel, or as otherwise directed by the client, or (ii) the client agrees in writing to an alternative arrangement for the file’s custody or destruction, provided, however, that files relating to the representation of a minor shall be retained until at least six years after the minor reaches the age of majority. If the client has not requested the file within six years after completion or termination of the representation or within six years after a minor reaches the age of majority, the file may be destroyed except as provided in paragraphs (d), (e), and (f) below.

Rule 1.15A (c)

(e) A lawyer shall not destroy a client’s file if the lawyer knows or reasonably should know that:
(1) a lawsuit or other legal claim related to the client matter is pending or anticipated;
(2) a criminal or other governmental investigation related to the client matter is pending or anticipated; or
(3) a disciplinary investigation or proceeding related to the client matter or a claim before the Client Security Board is pending or anticipated.

Rule 1.15A (e)

(f) Criminal defense counsel and defense counsel in delinquency cases shall retain a client’s files as follows:
(1) for the life of the client if the matter resulted in a conviction and a sentence of death or life imprisonment with or without the possibility of parole; and
(2) in all other criminal or delinquency matters, for ten years after the latest of the completion of the representation, the conclusion of all direct appeals, or the running of an incarcerated defendant’s maximum period of incarceration, but in no event longer than the life of the client.

Rule 1.15 (f)

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(g) A lawyer shall take reasonable measures to ensure that the destruction of all or any portion of a client file shall be carried out in a manner consistent with all applicable confidentiality obligations.

Rule 1.15 (g)

The Comments section addresses the importance of the written engagement letter and issues pertaining to documents in electronic format.

This new Rule provides a cost savings measure to those firms that have been holding onto files for years, whereas they can now destroy files by having specific guidance to do so. There are professional records consulting firms that do this, and do it well.