How long do attorneys have to keep files in California?

Year-end is when many firms clear out the storage room and the closed-matter folders. Before anything goes to the shredder, a managing partner or firm administrator needs three answers: how long attorneys have to keep files in California, which files can never be destroyed without the client's consent, and how to show the destruction was done properly if a former client, a malpractice carrier or the State Bar ever asks.

How long do attorneys have to keep files in California?

There is no fixed period. California's Rules of Professional Conduct do not set one. The State Bar's Formal Opinion No. 2001-157 says plainly that "No specific time period for retention of a particular item can be specified," and that a lawyer's obligation regarding former client files "cannot be measured by a fixed time period."

The five-year figure many firms use comes from a narrower rule. Rule 1.15(d)(5) requires a firm to preserve records of client funds and property for no less than five years after final appropriate distribution. That rule governs trust accounting records. It does not set a destruction date for the rest of the file. The 2001-157 opinion notes a Los Angeles County Bar recommendation of a five-year minimum after a matter closes, and then says a five-year period is not required in all cases.

The State Bar is revisiting the question. COPRAC circulated Proposed Formal Opinion Interim No. 19-0004 for public comment in May 2026, with comments due July 10, 2026. It has not been adopted. Its draft digest repeats the core point: the rules "do not specify a fixed retention period for closed client files." Watch for a final version before relying on any of its new detail.

Which files can never be destroyed without the client's consent?

Three categories carry the strictest limits: original documents and property the client deposited with the firm, closed criminal files, and anything a statute requires the firm to keep.

• Originals and client property. Under 2001-157, original papers and property received from a client, including estate planning documents delivered under Probate Code section 710, are governed by bailment law or the Probate Code. The opinion says the attorney "has no right to destroy them, no matter how long they have been held." The 2026 draft adds that a lawyer holding an original will may not scan it and discard the paper.
• Criminal matters. 2001-157 concludes that criminal files "should not be destroyed without the former client's express consent while the former client is alive." The 2026 draft keeps that life-of-client standard and points to Penal Code section 1054.9 for a separate duty to keep a copy of the file for the term of the client's imprisonment, which the draft says reaches all felony convictions on or after July 1, 2026.
• Items with intrinsic value. The 2026 draft says items such as stocks, bonds and original deeds must be retained and cannot be destroyed without the client's consent.

For a managing partner, the practical result is simple. Any year-end purge list needs a way to pull these files out before anything goes to the shredder.

What has to happen before a closed civil file is destroyed?

Before a closed civil file is destroyed, the firm should give the former client reasonable notice and a chance to respond, and in some cases review what is inside the file. Absent an earlier agreement, 2001-157 says the attorney must make reasonable efforts to obtain the former client's consent to any disposition that would prevent the client from taking possession of the file.

If the firm cannot locate the client, or the client does not respond, the attorney may destroy the items unless there is reason to believe preservation is required by law or destruction would prejudice the client. The opinion adds that the attorney "may have an obligation to examine the file contents before the file is destroyed." The 2026 draft describes what the notice should say: that the file exists, that the client may examine and retrieve it, and that destruction is planned.

Engagement letters help. 2001-157 recognizes that a fee agreement provision allowing destruction after a set period may be considered, while cautioning that such a provision "would not be appropriate in all circumstances." Firms that add file retention language to new engagement letters this year make future cleanups easier.

Can a firm keep closed files only in electronic form?

For most civil file items, yes, according to the State Bar's 2026 draft opinion. It says items reasonably necessary to the representation may be kept in electronic form only, unless losing the physical copy would prejudice the client. Originals and client property must still be retained, and the draft says a lawyer holding an original will may not digitize it and purge the paper.

The draft also confirms that emails, texts and other electronic records are part of the client file under rule 1.16(e)(1). That cuts both ways. A scanned file can replace paper, and the same file's electronic copies have to be found and destroyed when the paper goes. Until a final opinion issues, treat its electronic-only guidance as the committee's current thinking.

What counts as secure destruction for paper and digital files?

Secure destruction means a method that leaves client information unreadable, for paper and for every electronic copy. Business and Professions Code section 6068(e) requires a lawyer to maintain client confidences "at every peril to himself or herself." 2001-157 says files must be destroyed by a method that "will ensure no breach of confidentiality," and the 2026 draft says tossing files in the garbage "would not be appropriate."

California's general records disposal law points the same way. Civil Code section 1798.81 requires a business to take all reasonable steps to dispose of customer records containing personal information by shredding, erasing, or otherwise modifying the information so it is unreadable or undecipherable.

For digital media, NIST SP 800-88 Rev. 2 is NIST's guideline for media sanitization. It describes clear, purge and destroy methods and the records that show sanitization happened. A defensible digital purge has to reach every place a closed file lives:

• The document management system and any network file shares.
• Microsoft 365: Outlook mailboxes, OneDrive, SharePoint sites and Teams files.
• Backups, which keep deleted data until they age out under the backup schedule.
• Retired laptops, desktops, external drives and multifunction copiers with internal storage.
• Personal devices and consumer file-sharing accounts, if lawyers or staff used them.

How do litigation holds affect a retention schedule?

A hold overrides the schedule. If litigation is pending or reasonably anticipated, including a malpractice or fee dispute involving the firm, the affected files and data come off the destruction list.

For where a hold has to reach in Outlook, OneDrive, SharePoint and Teams, see our guide to litigation holds in Microsoft 365.

Courts look at how data loss happened. Federal Rule of Civil Procedure 37(e) addresses failures to preserve electronically stored information, and California's Code of Civil Procedure section 2023.030(f) limits sanctions, absent exceptional circumstances, for information lost through the routine, good faith operation of an electronic information system. A written schedule applied the same way every year looks very different from a one-time purge after a dispute surfaces.

What should a law firm do before December 31?

Run the cleanup under a written document retention policy with a named owner. A practical sequence:

• Pull a list of closed matters with close dates, practice area and responsible attorney.
• Flag criminal matters, estate planning matters, files holding originals or client property, and any matter under a hold or with an open dispute. Set those aside.
• Send notice letters for the remaining files, with a reasonable response window, and log every attempt to reach the client.
• Have someone with knowledge of each matter review files flagged for possible prejudice before destruction.
• Shred paper through a vendor that issues certificates of destruction, and keep the certificates.
• Delete electronic copies across the DMS, Microsoft 365 and file shares, and confirm when backups holding those copies will expire.
• Keep a destruction log: matter, date, method, who approved it, and where the notice went.
• Add file retention and destruction language to engagement letters for new matters.

The log is the part firms most often skip. It is also the record that answers a former client, a carrier or the State Bar if a destroyed file is ever questioned.

How can s90 help with a year-end file cleanup?

s90 works with California law firms to map where client data actually lives, from the DMS to Microsoft 365 to backups and retired hardware. We help firms set retention policies that match their written schedule, sanitize devices to NIST SP 800-88 and keep the evidence. Our agreements commit to producing evidence within 24 hours when it is needed. If a year-end file cleanup is on your list, we are happy to talk it through.