Retaining Your Own Legal File: Why It Matters in a Malpractice Case
You suspect your former lawyer mishandled your case, and you want a straight answer about whether you have a malpractice claim. That answer lives in the file: the pleadings, the correspondence, the deadlines met or missed in the underlying matter -- the case in which the attorney represented you. The first question in any legal malpractice evaluation is whether the attorney's conduct fell below the required standard of care, and without access to those records, it is nearly impossible to assess whether the attorney acted reasonably under the circumstances.
Your Right to Your Legal File
Attorneys are generally required to retain client records for seven years in most cases. New Jersey Rule of Professional Conduct 1.15(a) requires lawyers to preserve complete records of client property for seven years, Court Rule 1:21-6 imposes the same seven-year period for attorney recordkeeping, and the Advisory Committee on Professional Ethics has applied that seven-year benchmark to closed client files generally (ACPE Opinion 692).
Moreover, clients are entitled to obtain their own file upon request: under RPC 1.16(d), an attorney must surrender the papers and property to which the client is entitled at the end of the representation.
Taking Steps to Protect Yourself
Clients can take proactive steps during their case to safeguard important information. Doing so may prove invaluable if concerns about attorney negligence ever arise.
Simple but effective practices include:
- Keeping a folder of all filed court documents.
- Saving digital copies of pleadings, motions, and correspondence.
- Retaining email communications with your attorney and noting those that may be significant.
Having your own organized records ensures you are not solely dependent on your attorney's file if you ever need to evaluate their work later.
When Files Are Lost or Delayed
It can take time for an attorney or former law firm to locate and compile a client’s complete file--especially if years have passed. Occasionally, files may be lost or destroyed under a firm’s retention policy. Because of these uncertainties, maintaining your own copies of important documents and correspondence is the most reliable way to protect your interests should a malpractice claim become necessary.
The client file guide identifies common file contents and practical steps when records are delayed or incomplete.