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91-01 : Destruction of Closed Client Files

Members of the profession frequently seek guidance from the Law Society concerning appropriate time periods for retaining closed client files before destruction, and proper procedures for disposal of old files.

When Can Files be Destroyed?

A client can sue his or her former solicitor in contract and tort when alleging the solicitor has provided inadequate or negligent legal services (Central Trust v. Rafuse [1986] S.C.J. No. 52 [1986] 2 S.C.R. 147, (1986) 31 DLR (4th) 481). The limitation date may not expire until six years after the date of the error or, with leave of the court, within one year of the date on which the applicant first knew, or in all the circumstances of the case, ought to have known, of all material facts of a decisive character upon which the action is based (Limitations of Actions Act R.S.M. 1987, c.L150, Sec. 14(1), Rarie v. Maxwell [1998] M.M. No. 588, (1988) 168 DLR (4th) 579 [1999] 6 W.W.R. 142 and (1998) 131 Man. R (2d) 184.)

Thus, members of the profession are faced with the dilemma of never knowing with absolute certainty whether one can safely destroy an old file. The destruction of a file could in itself be a negligent act if important documents are inadvertently destroyed, or might eliminate the best evidence the solicitor has to defend against an allegation of negligence.

The Society recognizes that practical considerations must apply when a law firm is faced with a question of whether to and when to destroy old files, as it is virtually impossible to keep every closed file indefinitely. Many firms have developed an informal "rule of thumb" as to the appropriate time period after which files will be culled and destroyed. Ultimately, a lawyer must use his or her best professional judgement when determining whether it is appropriate to destroy a file in any particular case, keeping in mind the provisions of the Limitation of Actions Act. Consideration should be given to the length of time the file has been closed, the type of legal matter and the lawyer's own opinion as to the likelihood of any complaint arising in the future concerning the quality of legal services provided. In recent years, there has been an increased incidence of wrongful conviction proceedings. In such circumstances, a member's original file may take on great importance. Where, in a lawyer's professional judgment, there is a risk of wrongful conviction proceedings being commenced, it would be prudent for members to consider maintaining such files indefinitely.

Members are reminded there are minimum requirements imposed by Revenue Canada for maintaining trust account records, and the Law Society Rules require that trust account books and records be kept for at least ten years (see Rule 5-51(1)). However, these are minimum requirements only, and should not be interpreted as authority to automatically destroy every file after a fixed time period.

Also, the Society's Rules specify that a member who intends to withdraw from the practice of law in Manitoba shall advise the Society in writing of the members intention regarding the storage and disposition of open and closed client files, trust account records and other important valuables and documents (see Rule 2-74(1)).

Proper Procedure for Destruction of Files

When a lawyer has made a judgment that it is appropriate to destroy a closed file, it is recommended that the following procedures be adopted:

 

  1. Every file to be destroyed should be reviewed briefly by a lawyer or articling student. It is not appropriate to delegate this task to a paralegal or secretary;

     

  2. The file should be checked for valuable documents such as original wills, certificates of title, etc., that may have been mistakenly placed in a closed file;

     

  3. Any other original documents or paper which are property of the client should be removed and returned to the client. Ideally, this procedure should be performed at the time the file is closed. See Bank of Nova Scotia v. Imperial Developments (1987) 46 DLR (4th) 190 (Man. C.A.), [1988] 2 W.W.R. 141 (1987) 49 Man. R. (2d) 53.

     

  4. Files should be shredded or similarly destroyed before discarding in order to protect confidential information. If this task is entrusted to a professional shredding service outside the law firm, the lawyer should exercise an appropriate degree of care, control and supervision when transferring custody of the files.

(March 1991)
(Amended November 2004)
(Amended December 2004)

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