Purposes of File Retention continued
Defending Against Negligence Claims
A negligence claim can be brought against you long after the alleged negligence occurred. On June 1, 2013, a new Limitation Act, SBC 2012, c. 13 (formerly Bill 34) came into force. This Act simplifies the time limits for filing civil lawsuits. It replaced the two, six and 10-year limitation periods for civil claims with a two-year-from-discovery basic limitation period and the current 30-year ultimate limitation period with a 15-year-from-occurrence limitation period (with some exceptions). Although the ultimate limitation period has been shortened, document retention strategies for lawyers will not likely change drastically, given that statutory provisions such as the Income Tax Act require retention of documents for a certain number of years. This is detailed further on the next page.
The initial retainer letter, notes of instructions and conversations, telephone records, copies of correspondence, drafts of documents, and final documents can be particularly important in defending a negligence claim against you. If you turn over a file to a subsequent lawyer or the client, it is in your best interests first to note what file materials belong to you and need not be provided to your client, and second, to keep a copy at your own expense of the file contents that belong to the client. (Refer to the Additional Resources section for articles addressing these issues.)
Defending Against Complaints
Another reason to retain your files is to enable you to defend against complaints that might arise. A complaint to the LSBC may be made against you not only during your active work on the file, or when your client decides to change lawyers, but also long after you have closed your file.