It's not over till it's over - Part II

Issue June 2003 By Anne Kaufman

What you should know about retaining files

This article continues the discussion begun in last month's Bar Overseer column regarding the lawyer's duty to the client in criminal matters after conclusion of the case and addresses the issues peculiar to the retention of files in these matters.

The Attorney and Consumer Assistance Program (ACAP) of the Office of Bar Counsel receives approximately 600 letters a year from inmates currently incarcerated in the commonwealth. These communications often contain requests for assistance in obtaining copies of the file or the transfer of files to appellate counsel. Not infrequently, the cases at issue concluded many years ago.

In the September 2001 Bar Overseer column "Talking Trash - Recycled," Bar Counsel Daniel Crane discussed the criteria to be used in making decisions as to destruction of client files. (The article can be found, along with all the other Bar Overseer columns, at In the article, the Bar Counsel analyzes Mass. R. Prof. C. 1.15(a) as it applies to retaining records relating to trust funds. He also points out that retention of the file beyond the six-year period referred to in Mass. R. Prof. C. 1.15(a) may be required for the lawyer to fulfill the duty of diligence and obligation to turn the file over to the client upon request pursuant to Mass. R. Prof. C. 1.2, 1.3 and 1.16.

Mass. R. Prof. C. 1.16(d) and (e) are particularly critical to this discussion. These rules govern the lawyer's duty to the client to retain or surrender papers and property. Mass. R. Prof. C. 1.16(e) provides in summary that a lawyer "must make available to a former client, within a reasonable time following the client's request for his or her file" all documents the client supplied, all pleadings and other papers filed in the court or served upon any party, all investigatory and discovery documents for which the client has paid and all work product for which the lawyer has been paid (absent a contingent fee agreement in which case the client does not have to pay to be entitled to work product). Mass. R. Prof. C. 1.16(e)(6) defines work product as "documents and tangible things prepared in the course of the representation. Examples of work product include without limitation legal research, records of witness interviews, reports of negotiations, and correspondence."

Like any other client, the criminal defense client has a right to receive at least one complete copy of the file in the possession of the attorney. Mass. R. Prof. C. 1.2, 1.3 and 1.16(d) and (e) contain no time limit. This right can thus arguably be exercised at any time. Lawyers in all cases, civil and criminal, therefore may wish to create a written file retention policy that ideally would be shared with the client at the commencement of the relationship, but certainly should be discussed fully with the client at the end.

However, criminal case files that result in convictions differ from civil files in several critical ways. Preliminarily, the client requesting the file is almost always incarcerated. It is unfortunately not uncommon for the possessions of prisoners, including their confidential legal files, to be misplaced or taken during a move or contraband shakedown. Thus, unlike the civil client, the criminal client has little control over the integrity of the file while incarcerated.

In addition, the increasing use of prior convictions, regardless of jurisdiction, for sentence enhancement and deportation decisions in the federal sentencing and immigration system has given old files and records far greater significance. The rise in the use of aged prior convictions as a basis for sentence enhancement has spawned numerous Massachusetts Supreme Judicial Court cases, most notably Commonwealth v. Grant, 426 Mass. 667, 689 N.E.2d 1336 (1998) and Commonwealth v. Lopez, 426 Mass. 657, 690 N.E.2d 809 (1998). These cases hold that a "presumption of regularity" will be applied where the defendant cannot reconstruct the file and where the commonwealth has properly disposed of the record.

Part of the defense attorney's standard practice should include discussion with the client of the possible significance a conviction may have in increasing future sentences or to immigration issues as well as the procedures for obtaining copies of materials should the client wish to preserve this evidence. In addition, the lawyer should advise the client as to wisdom of ordering trial material that is readily attainable now but may soon become unavailable.

In many instances, the period of time during which the commonwealth is required to maintain certain records is surprisingly short given the importance the record can represent to the defendant down the road. When posted online at our Web site, this article will include an appendix of the relevant court rules and office policies governing retention of court records and client files in criminal cases. The bottom line is that often the defense attorney will be the client's only source of important documents in the future.
If successor or appellate counsel files an appearance, the file obviously will be provided to the new attorney. Whether the file is sent to the client or the new lawyer, trial counsel should cause a receipt to be signed in duplicate, including an inventory of the contents of the file. If the lawyer does not plan to retain a copy of the file, this intention should be made clear to the client and successor counsel.

If there is no successor or appellate counsel, and to avoid having to dig up the file years after the case has ended, all lawyers, but particularly criminal defense lawyers, may decide to provide a complete copy of the file to the client at the end of the case or as soon as is practicable. Given that the criminal defense client's ability to retain a file in an institution is tenuous at best, the original usually should not be sent directly to an incarcerated client unless the client specifically so directs in writing after being informed by the lawyer of the dangers inherent in this action. This notice also should be in writing. The client may wish instead to direct the attorney, in writing and with an appropriate waiver of confidentiality, to deliver the original file or a copy to a trusted relative or friend. Again, a receipt in duplicate, including a file inventory, should be signed and retained by the lawyer.

If any portion of the file was obtained subject to a protective order, for example the victim's psychiatric records, the lawyer must redact the document in compliance with the order before giving a copy to the client. The lawyer should inform the client that the record has been redacted in accordance with the court's instructions. The lawyer should then retain the original document until and unless successor counsel is retained or appointed, at which time it should be handed over. This may mean the lawyer will have to retain the document indefinitely.

Once the lawyer has provided a complete copy to successor counsel, appellate counsel, the client or the client's designee, the lawyer may handle the file in accordance with the written file retention policy. A written statement of the lawyer's file retention policy, if one exists, should be delivered to the client and to anyone else the client authorizes to receive the file even if it was provided before. That said, defense counsel for their own protection may nonetheless wish to retain a copy of the complete file at least until all direct appeals have been exhausted or the sentence has been served.

If the lawyer retains a copy of the file and continues to receive requests from the client for additional copies after the complete file has been provided to the client, the lawyer's duty to provide another copy should be analyzed in accordance with Mass. R. Prof. C. 1.16(e). If refusal to provide a replacement copy would prejudice the rights of the former client, the copy must be provided. The attorney may require a non-indigent client to pay the reasonable costs of copying. If the former client is indigent and needs the copy to pursue post-conviction remedies, the lawyer might suggest that the client file a motion for appointment of counsel and offer to provide the additional copy to successor counsel. If the file will be costly to copy, the lawyer or client may also file a motion with the trial court pursuant to G.L. c. 261, sect. 27B for payment of the copying costs.

Occasionally a client will request that the lawyer provide a document that was never a part of the attorney's file. If this is the case, the attorney does not have an affirmative obligation to obtain the requested document. However, the attorney should inform the client that he or she does not have the document and advise the client regarding where and how the document may be obtained.

It is essential for criminal defense counsel and client to jointly plan the disposition of the file before the conclusion of the case in the context of both the client's potential future need for the file and the client's ability to duplicate the necessary information from another source. Although this task seems like a lot of effort, adherence to a clear system will save time and trouble in the end.