File Retention Periods

All files are not equal. Thus, there is no universal agreement on how long files should be retained. The Law Society of Saskatchewan has no set policy requirements outside of the specific retention Rules detailed above. To decide on a file retention policy, you should take into consideration:

• regulatory and statutory requirements (some of which are set out earlier in this module);
• the areas of law practised by you and others in your firm;
• the applicable limitation period (briefly, two years from the date the plaintiff became aware of the basis for the claim); 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 indeed. For example, it is not acceptable to destroy a 10-year commercial mortgage file within six years from attending to registration and advance. At that point there would still be four 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 six 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 six years to the end of that period.

Here are some considerations to account for in relation to particular areas of law:

Wills and Estates
Lawyers practicing in wills and estates may need to keep some files for an indefinite period, sometimes “permanently”, because the end of the client’s life may be just the beginning of the problems arising from the will. Most wills files that have been probated can be safely destroyed 10 years after final distribution of the client’s property.

Civil Litigation
For those practising in civil litigation, generally your files must be retained for at least six years after final judgment, dismissal, or settlement. If you act for a minor as plaintiff in a tort claim, the running of the limitation period does not commence until after the child reaches the age of majority.

Criminal Law
Criminal files generally must be kept for six years after completion of sentencing, including appeal proceedings if acting as defense counsel.

The Law Society of British Columbia has prepared a Suggested Minimum Retention and Disposition Schedule, which you may find useful. It provides specific examples of file retention periods linked to areas of practice. You may also wish to refer to Retention, Storage and Disposition of Client Files where Rod MacDonald, Q.C. provides an example applying the above considerations to files common to a broad general practice.