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Opinion 627

Question Presented

Under the Texas Disciplinary Rules of Professional Conduct, what are the responsibilities of a law firm for preserving or disposing of files of a former client after the lawyer who represented the former client leaves the firm?

Lawyer A is a Texas lawyer who was a member of Law Firm X for several years. During his time at Law Firm X, Lawyer A represented many clients, including some who later ceased to be clients of Lawyer A and Law Firm X. When Lawyer A left Law Firm X to become a member of Law Firm Y, Lawyer A’s existing clients instructed Law Firm X to transfer their open files to Law Firm Y and these files were transferred. The closed files of Lawyer A’s clients and former clients remained with Law Firm X in storage along with Law Firm X’s other closed files.

Under Law Firm X’s record retention policy, files are scheduled for destruction five years after being closed.  Law Firm X notified Lawyer A of its plan to destroy such files of Lawyer A’s clients and former clients.  Lawyer A informed Law Firm X that he did not want those files and that he wanted no responsibility for maintaining or destroying those files.
Law Firm X then contacted Lawyer A’s former clients to inquire whether they wanted their closed files returned to them.  In most cases, those former clients responded that they did not want their closed files and that they would not be responsible for storing or disposing of them. Some of Lawyer A’s former clients, however, requested that Law Firm X review the closed files to determine whether the files contained any “important papers” that should be retained. Conducting such a review would be expensive for Law Firm X, especially because Law Firm X, unlike Lawyer A, is not familiar with the contents of the files, making it difficult for Law Firm X to evaluate whether any of the contents are potentially “important.”

Bluebook Citation

Tex. Comm. On Professional Ethics, Op. 627 (2013)