9.3 Purposes of File Retention - Ability to Respond
Responding to Negligence Claims or Claims under Part B of the Insurance Policy
A negligence claim can be brought against you long after the alleged negligence occurred. The Limitations Act, R.S.A. 2000 c. L-12, addresses limitation periods applicable to negligence, generally two years from discoverability or ten years from the date the claim arose, but there are exceptions, including discoverability and claims by minors. You need to consider potential claims’ limitation periods when considering how long to keep your files.
The initial retainer letter, notes of instructions and conversations, telephone records, copies of correspondence, drafts of documents and final documents can be particularly important in responding to a negligence claim against you. If you turn over a file to a subsequent lawyer or the client, it is in your best interest first to note what file materials belong to you and need not be provided to your client, and second, to keep a copy at your own expense of the file contents that belong to the client. (Refer to File Retention and Document Management).
You should also consider how you would respond to assurance fund (Part B) claims, allegations that you misappropriated trust funds. Ensure that you keep your trust ledger accounts and other financial records, as well as the file contents that explain trust transactions (including documents evidencing instructions from the client) for ten years as is required by the Rules of the Law Society of Alberta, Rule 119.37(1), but consider whether you should keep particular records for a longer period as a result of discoverability and other exceptions to the two year limitation period.
Responding to Complaints
Under the Law Society’s Early Intervention program, we receive information concerning lawyers. Generally, we may choose not to accept information when more than three years have passed because files cannot be kept forever and memories fade over time which can cause evidentiary issues. However, the Legal Profession Act does not contain an absolute limitation period so that where there is a compelling reason for the delay and serious misconduct may have occurred, we may act on the information.
If we assess the information as indicating that the lawyer’s conduct poses a regulatory concern, we refer the information to our discipline process where it becomes a complaint even when more than three years have passed.
You want to ensure that you have access to information which would allow you to respond to complaints. We recommend that lawyers comply with their usual retention and disposal guidelines—but if you have a concern that a dissatisfied person (your former client or the opposing party) will keep pressing by any means, consider retaining documents for a longer time.