Maintaining Confidentiality

A lawyer’s obligation to maintain confidentiality survives the retainer. Lawyers must ensure that they maintain confidentiality when disposing of files. If paper documents are shredded or incinerated, the lawyer must ensure that confidentiality is maintained both during the destruction process and the disposal.

Destruction of Documents and Information

When destroying a file, a lawyer should ensure that all of the contents of the file are destroyed. This includes both paper and electronic documents and electronic information contained in the electronic document such as metadata.

Maintaining a Record of Destruction

The lawyer should keep a record of all files destroyed or returned to the client in accordance with the lawyer’s file destruction policy. The record at a minimum should contain the client’s name, last known address, file number, a brief description of the nature of the matter, the file closure date, the file destruction date or date that the file was delivered to the client, and the name of the lawyer who authorized the destruction or delivery. This will assist a lawyer to counter allegations that a file was destroyed indiscriminately.

Appendix 5 contains suggested steps for closing, retaining and destroying a file.