10.7
What Lawyers Should Keep and for How Long

The Law Society Rules do not require lawyers to keep a complete copy of the entire client file. However, it is a strongly recommended practice, in the event you need to defend a professional negligence claim or respond to a complaint. While no time limitations apply to complaints to the Law Society, civil litigation claims are subject to limitations legislation. Most firms store client files for a minimum of ten years following the end of the fiscal year in which the file was closed, in consideration of sections 3 and 11 of the Limitations Act and in coordination with Part 5 of the Rules. It is recommended that lawyers should consider maintaining files for the duration of the 10 year outside limitation period, plus one year to serve a statement of claim, plus the three-month renewal period provided by the Rules of Court. 

There will be situations where files should be maintained for longer periods. For example, lawyers should identify files where a client was a minor and the limitation period does not commence until they reach the age of majority, and files where discoverability issues may apply and consider whether they should keep the file longer. Also, original wills, powers of attorney and personal directives must be kept for ten years after probate is granted. Lawyers will need to consider the contents of each file to determine how long they must retain it. This is discussed in greater detail below.

The Limitations Act provides: 

3(1)  Subject to section 11, if a claimant does not seek a remedial order within 

(a)    2 years after the date on which the claimant first knew, or in the circumstances ought to have known, 

(i)    that the injury for which the claimant seeks a remedial order had occurred, 

(ii)    that the injury was attributable to conduct of the defendant, and 

(iii)    that the injury, assuming liability on the part of the defendant,  warrants bringing a proceeding, or 

(b)    10 years after the claim arose, 

whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. 

It further provides: 

11   If, within 10 years after the claim arose, a claimant does not seek a remedial order in respect of a claim based on a judgment or order for the payment of money, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. 

The Limitations Act contains additional qualifications on the limitation periods noted above. For example, section 4(1) states that the operation of the ten-year limitation period is suspended while a defendant fraudulently conceals an injury. The operation of a limitation applicable to an individual under disability is also suspended during the time the claimant is disabled. Other special provisions govern claims by minors. 

In reality, most claims and complaints are brought in the early stages. Any file that may give rise to a potential claim that is not statute-barred should be retained indefinitely, until the lawyer is able to make an assessment of their potential liability. If a lawyer is unsure when to destroy a file, they should set a date on which to review and reassess it in the future. Sound business judgment should be applied when deciding to destroy files. A lawyer should be particularly cautious when minors or clients with capacity concerns are involved. Lawyers are encouraged to contact the Practice Advisors before destroying files which may have issues of liability or potential ongoing limitation periods. 

The nature of the work performed, or the “working life” of the document, must also be considered when deciding how long to store client files. Wills are an obvious example, as they may not be subject to probate until many years after their execution. Other examples of documents with an extended “working life” include mortgages, long term leases and matrimonial agreements. In many of these examples, the client may return to the lawyer for assistance with the interpretation, enforcement or variation of an agreement. In the case of a will, the interpretation of the will and the testator’s intentions may be the issue of future litigation. Like the testamentary documents themselves, the lawyer’s file should be retained until after probate is sought as it will be evidence if the matter is litigated. This is discussed in greater detail below. 

When closing client files, lawyers should consider retaining the following (in addition to the mandatory documents outlined above): 

  • copies of notes of all telephone calls, meetings or interviews; 
  • copies of all documents and correspondence prepared by the lawyer for which the client has paid, including draft copies of documents; 
  • copies of letters received by the lawyer; 
  • copies of letters/emails of instruction from the client to the lawyer; 
  • copies of email communications; 
  • copies of all offers to settle and the client’s acceptance or rejection of any offers;  
  • copies of expert reports or other documents that provide the basis of the lawyer’s opinion or recommendation;  
  • lawyers’ opinions, personal notes and file memos;  
  • copies of statements of account;  
  • copies of briefs and memoranda of law (and possibly drafts); 
  • copies of documents which may not be easily obtained from other sources after the file is closed; and 
  • copies of documents created in preparation for a hearing or trial, such as briefs, trial books and books of documents. 

“Copies” may be hardcopies or electronic versions.  

Last modified: Friday, 21 April 2023, 9:27 AM