9.9 File Retention Periods
There is no universal agreement on how long files should be retained. The Law Society of Alberta has not set policy requirements or guidelines. In order to decide on a file retention policy, you should take into consideration
- statutory requirements (some of which are set out in the previous chapters),
- the areas of law practiced by you and others in your firm,
- the applicable limitation period and
- the potential needs of you and your client.
You may have to keep files for a long period of time if the legal matter is complex or there is a possibility of an extended limitation period.
Some transactions may have very long tails. For example, it is not acceptable to destroy a 15-year commercial mortgage file within ten years from attending to registration and advance of funds. At that point there would still be five years left on the term of the mortgage, and problems may arise, for example, on payout in the final year of the mortgage term due to imprecise language in the mortgage document. In such a case, an action for negligence may be commenced up to two years after the end of the mortgage. In general, think of the term of the document drafted, or the client’s intended use of the document, and the period during which that use may continue, and add at least ten years to the end of that period.
The Practice Advisors recommend that lawyers do not store wills on behalf of clients. Keep in mind that the retention period for wills does not start until the date probate is granted. This means that you may need to keep portions of your files for an indefinite period, sometimes "permanently" because the end of the client’s life may be just the beginning of issues arising from the will. Most will files that have been probated can be safely destroyed 10 years after final distribution of the client’s property.
For those practising in civil litigation, generally your files must be retained for at least ten years after final judgment, dismissal or settlement. But there are exceptions to this, for example, if you act for a minor as plaintiff in a tort claim, the running of the limitation period may not commence until after the child reaches the age of majority.
Criminal files generally must be kept for ten years after completion of sentencing, including appeal proceedings if acting as defense counsel.
And remember that the Rules of the Law Society of Alberta (Rule 119.37(1)) require you to keep files which support your trust ledger accounts and certain financial records for at least 10 years.
The Law Society of British Columbia has an excellent paper called “Closed Files: Retention and Disposition”. While the paper refers to specific BC legislative requirements, it also contains general information which could be useful to Alberta lawyers. You should always review current Alberta statutes and rules and apply good judgment when using resources from another jurisdiction.