File Retention Periods
There is no universal agreement on how long files should be retained. The Law Society of British Columbia has not set policy requirements or guidelines. In order to decide on a file retention policy, you should take into consideration:
- statutory requirements (some of which are set out above);
- the areas of law practised by you and others in your firm;
- the applicable limitation period (typically two years from the date the plaintiff became aware of the basis for the claim); and
- the potential needs of you and your client.
You may have to keep files for a long period of time if the legal matter is complex or there is a possibility of an extended limitation period.
Some transactions may have very long tails indeed. For example, it is not acceptable to destroy a 10-year commercial mortgage file within six years from attending to registration and advance. At that point there would still be four years left on the term of the mortgage, and problems may arise, for example, on payout in the final year of the mortgage term due to imprecise language in the mortgage document. In such a case, an action for negligence may be commenced up to two years after the end of the mortgage. In general, think of the term of the document drafted, or the client’s intended use of the document, and the period during which that use may continue, and add at least three years (two years for the filing of a civil claim plus 1 year for service of it) to the end of that period.
Lawyers practicing in wills and estates may need to keep some files for an indefinite period, sometimes "permanently" because the end of the client’s life may be just the beginning of the problems arising from the will. Most wills files that have been probated can be safely destroyed 10 years after final distribution of the client’s property.
For those practising in civil litigation, generally your files must be retained for at least six years after final judgment, dismissal, or settlement. If you act for a minor as plaintiff in a tort claim, the running of the limitation period does not commence until after the child reaches the age of majority.
Criminal files generally must be kept for six years after completion of sentencing, including appeal proceedings if acting as defense counsel.
In 2013 the government made changes to the Limitation Act. In general the new ultimate limitation period is 15 years. You should check for specific limitations periods based on your specific areas of practice (Limitations Act).
Refer to the Suggested Minimum Retention and Disposition Schedule found at Appendix A for more specific examples of file retention periods linked to areas of practice.
While the above discussion considers the need to keep records to defend against complaints, or civil suits, keep in mind that various rules may require that specific records be kept for long periods of time. For example, Rule 3-75 requires lawyers to keep certain records, such as the following, for at least 10 years from the final accounting transaction or disposition of valuables in respect of a client matter:
- trust account records (Rule 3-68);
- general account records (Rule 3-69);
- records of cash transactions (Rule 3-70); and
- billing records (Rule 3-71).
For additional reading review the paper Closed Files: Retention and Disposal available on The Law Society's Website.