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Question of ethics

Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not yet been reviewed in light of the wide-ranging regulatory changes implemented on 6 October. It will be reviewed and updated (or archived) in due course.

September 2011

Destroying old files

Q. We are fast running out of storage space for old files and other documents, so are intending to destroy the older files. Before doing so, we wanted to check how long the SRA expects us to keep the files.

A. The Solicitors' Code of Conduct 2007 does not specifically deal with the storage of files, but you need to bear in mind the following points:

As a matter of law, many of the papers on the file belong to your client(s). Therefore, unless you agreed with your client the right to destroy the file

  • after a specified period of time (either at the outset of the retainer), or
  • before placing the file into storage,

you need to assess the risk involved if you destroy files without your clients' consent. This might involve, for example, a possible claim on your indemnity policy and a complaint to the Legal Ombudsman on the grounds that you have provided an inadequate professional service. It may therefore be advisable to ask your insurer's views.

Other points your should consider

  • Original documents such as title deeds, wills, etc. should not be destroyed without the owner's consent.

  • Check each file to ensure there is no outstanding balance left on your client account. If there is, do not destroy the file until you have dealt with the outstanding balance by

    • returning it to the client,
    • dealing with it in accordance with rule 22 of the Solicitors' Accounts Rules 1998 if the client cannot be traced and the amount held is £50 or less, or
    • applying to the SRA for authorisation under rule 22(1)(h) of the Accounts Rules.
  • The likely statutory limitation period for any action which may arise
  • You must retain certain documents for specified periods, both at law (e.g. for VAT purposes or under the Money Laundering Regulations) and in conduct (e.g. under the Solicitors' Financial Services (Conduct of Business) Rules 2001 and under rules 32(9), 33 and 38(2) of the Accounts Rules).
  • Your continuing duty of confidentiality to former clients: Make sure when destroying files you do so without breaching that confidentiality.
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