November 30, 2018 • By Dennis Beaver
“Mr. Beaver, I am calling you from my lawyer’s office. I came here asking for a copy of my auto accident file,” ‘Randy’ stammered, the degree of frustration in his voice rising with each second.
“They told me that he is in a conference, but his secretary met me in their lobby, got my name, address, made a photocopy of my driver’s license and then went searching for the file.
“She returned almost an hour later, stating that she looked everywhere, even in their basement, but found nothing, and if I was their client, it had to be a long time ago, as the file has no doubt been destroyed. There was a record of one client with the same name, but his address and photograph did not match what I had given her.
“When I asked to see the photo, it was me, but I admit, my appearance had somewhat changed,” Randy explained.
I asked him, “What do you mean, somewhat changed? And what about the address?”
“When I hired the lawyer I had short hair, was clean-shaven and weighed 150 pounds. I moved away from town for a while. Now I have a full beard, a long ponytail, and am slightly overweight.”
So, how “slightly overweight” was Randy? Did it occur to him that appearance could be a factor in doubting that he really was their client?
“I must weigh 350 pounds or more.”
And just when did the law firm represent him for his auto accident case?
When he said that it was more than 20 years ago–he wasn’t sure–I asked if he would pass the phone to the secretary and tell her that she had permission to discuss anything with me about his request or the case itself. I had the feeling that Randy had not merely wandered into his former lawyer’s office, but that this poor man’s life was a shambles. He needed something and hoped to find it, there.
Lawyers can’t be forced to keep client papers forever
In April, 2014, The Orange County Bar Association addressed the issue of, once the case is over, returning all of the various documents or other property accumulated during the course of representation, at the request of the client. Then, they posed an important question:
“What if the client does not ask for their papers and property to be returned?”
Law keeps lumberjacks busy, generating boxes of correspondence, transcripts, police and physician reports, all of which takes up huge amounts of space. Keeping them at a storage facility is expensive. So, how long must your lawyer hang on to it?
“Like most things in law and life,” states the Orange County Bar Association, “The answers depend on the circumstances.” To that we add, in California there is no one specific time required, while in some other states, there are.
However, the Los Angeles Bar Association recommends, “at least 5 years for civil cases; but in criminal matters, files should not be destroyed without the former client’s express consent while the client is alive.”
When clients suddenly re-appear – Risk in keeping old files
Having a client–or their relatives–suddenly re-appear isn’t all that rare and can result from a belief that the attorney still has money belonging to the client, a son or daughter. One way of diverting attention from themselves–where parents have mismanaged settlement funds for a child–is to say, “You go see that lawyer because she’s got your money!”
Many complaints against attorneys have been filed with State Bar’s under those precise fact situations, and is one good reason that with settlements which involve injured children, personal injury attorneys will keep their file several years after the minor has become an adult.
You might be thinking, “Before destroying my file, shouldn’t I get a letter or phone call?”
In fact, that’s what many lawyers do, but there is no nationwide standard, and notification is not required by most state bar associations.
Hanging onto files, in these days of identity theft, exposes clients to the risk of their confidential information being stolen, and is one argument for file-purging after an appropriate number of years have elapsed.
We would learn that Randy was 18 and the only survivor in a horrible auto accident almost 25 years ago in which his parents were killed. He suffered neurological injuries which turned a bright student into one who could barely read. There was no lawsuit because the driver at fault had little insurance and no property.
“I just hoped there would be something there, in that file, for me, there just has to be,” he said, sobbing.
There is little doubt that he will return.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.