As a lawyer, you have a duty to retain information about your client’s case. This section will describe why you have this duty, your obligation to retain data under the Nairobi Code, and which elements of a case file belong to the client. In the subsection of this page, you will find some options for file storage policies that your office could implement.
Lawyer’s duty to retain client information
It is important to maintain thorough case files so that you have the information necessary to help your client. You also have a duty not to prejudice your client’s interests even after the person is no longer your client. Therefore, you should maintain all files that your client could use for an appeal or another legal proceeding in the future. As a result of this duty, some lawyers opt to maintain clients’ files until the client dies and others keep files for a set number of years after the case is closed. Look to see if the professional standards in your country govern how long you should retain case files.
Nairobi Code and information retention
The Nairobi Code also obligates you to maintain certain types of information. Under the duty of diligence, you are required to maintain a case file system in which you record all of the work that you have done on your clients’ cases.
It is important that you maintain information about your clients to detect potential conflicts of interest between them and a prospective client. An ethical wall or cone of silence can be created so that a caseworker working on one case cannot access information on a conflicting matter on which a colleague is working or has previously worked. This means that in cases where a conflict of interest has been identified, the files may need to be stored in a different physical location or steps must be taken to restrict caseworkers’ access to soft copies of the conflicting files. It can be helpful to register known conflicts of interest in your organization’s database or filing system.
An ethical wall is an administrative screening process that prevents lawyers or administrative staff from accessing information about a client with whom they or their clients may have a conflict of interest.
A cone of silence is an oath that a lawyer or other staff member takes promising not to disclose any information about former or current clients that would create a conflict of interest within the organization.
Which parts of the case file belong to the client?
Generally, the entire contents of a client’s file, other than work product, belongs to the client. As a result, it must be provided to him or her or to a successor lawyer at the client’s request. This includes both the hard and electronic copy of the file. When sending a former client’s file to a successor lawyer at a different organization, please keep in mind that you still have a duty of confidentiality to that former client. Work product is generally defined as a writing that reflects the lawyer’s impressions, conclusions, opinions, or legal research or theories. You may also give your work product to the client, but you are not required to do so unless the absence of those documents would prejudice the rights of the client. The client maintains the right to access his or her file even after the client-advisor relationship has ended.
No originals should be kept in the client’s file. Originals belong to the client and they should be returned to the client as soon as a copy for the file has been made.
When closing a file, you should inform the client of your decision to close the case. Reasonable efforts must be made to inform the client of the file closure, for example by mailing letters to the last known address or contacting by the last known phone number. Regardless of how you decide to inform clients, you should always return any original documents to them.
Open and closed files
Your file storage system should allow you to separate open and closed cases.
- Types of Open Cases:
- Case is open and active
- Case is open and inactive pending client contact, adjudication, or other reason
- Types of Closed Cases:
- Adjudication on the case where client does not wish to appeal
- Client wishes to withdraw application and close case
- Client wishes to terminate representation with your organization
- Conflict of interest arises
- Client has failed to contact office and has been unreachable time for reasonable period of time (i.e. 3 months)
- Client has been resettled to 3rd country or returned to home country or otherwise left the country (and office is not currently assisting family members associated to client’s case)
Closed files should be kept for:
- At least, 5 years after the case has been closed and no other action has been taken
- Look at the practice of local law firms and bar associations to assess if there is a local best practice or legal requirement that recommends a longer duration
- Consider the duration of the RSD cycle until the point of resettlement/residency (or other applicable durable solution), which may extend the file storage period you set
- You may also wish to dispose of a file if the client only received an intake, and then failed to return to the office or was not reachable for 3 months