With summer nearly upon us, there is no better time for a refresher on attorney ethics to avoid landing in hot water with disciplinary authorities. From tips on attorney advertising to the intricacies of attorney trust accounts, this second installment will assist in avoiding common ethical pitfalls in the practice of law.

Client Files and Record Retention

Maintaining proper client files is essential to a successful practice. It is also extremely important for avoiding ethical issues and assisting in the defense of a legal malpractice claim should one arise. ABA Model Rule 1.15(a) provides, in pertinent part, that “complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.” In the context of closing out a particular matter, attorneys must abide by applicable ethics rules to retain, maintain, and return those portions of a client’s file to which the client is entitled. ABA Model Rule 1.5(a) (attorneys must preserve client property for five years after the representation ends); N.J. RPC 1.15(a) (seven years); Pa. RPC 1.15(c) (five years)). Some jurisdictions, including New Jersey, require that certain records that constitute “property of the client”—including, for example, wills and deeds—must be returned to the client, disposed of in accordance with a court order or written agreement with the client, or else be maintained by the attorney for a seven-year period. N.J. RPC 1.16(d)(attorney has an obligation to return “papers and property to which the client is entitled”); N.J. Advisory Comm. on Prof’l Ethics Op. 692 (Jan. 15, 2001) and Supp. Op. 692 (Oct. 28, 2002). It is advisable to return the original of any legally operative document, such as an executed contract, to the client and preserve a copy for the attorney’s records. See In re Borden, 121 N.J. 520, 524 (1990) (attorney disciplined for failing to return an original contract to the client)).

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