File Retention for Attorneys - appears to be 6 years in S.C.

Rule 1.16 does not elaborate on the lawyer's duty when files are not claimed. The S.C. Bar Ethics Advisory Committee has concluded only that, in the absence of more specific guidance, a lawyer should not dispose of the files until "it is reasonable to believe" that the client will not be prejudiced by disposal. See S.C. Bar Ethics Adv. Op. # 92-19. One possible means to reduce the likelihood of indefinite storage obligations is an agreement between lawyer and client entered into at the outset of the representation. The agreement must provide the client with reasonable notice and a reasonable opportunity to obtain the file prior to its destruction. Id. Even a general agreement allowing the lawyer to dispose of files if not claimed after a certain passage of time, however, may not authorize the lawyer to dispose of file materials that have inherent value to the client, such as corporate records or deeds. See S.C. Bar Ethics Adv. Op. # 98-33 (absent agreement with client regarding destination of client files, attorney should retain files for at least six years and may place files on computer disks or similar media as long as attorney can access records and insure confidentiality). See also ABA Formal Op. # 92-369 (disposition of files after death of sole practitioner); S.C. Bar Ethics Adv. Op. # 95-18 (disposal of property other than files).

The lawyer may retain a copy of any file materials returned to the former client. The lawyer, however, must bear the cost of any copies retained, except for the cost of additional copies of materials previously provided to the client. Id. A lawyer dismissed for cause has no retaining lien and may not require payment prior to delivery of the file for any copies properly chargeable to the client. A lawyer fired without cause may have a retaining lien, but may retain the file only so long as retention does not prejudice the client's interests. Id.

In contrast to the lack of specific guidance provided by the Rules of Professional Conduct regarding the file retention duty owed to a client, South Carolina Appellate Court Rule 417 imposes specific retention requirements regarding financial information. In addition to retaining specified bank account records, the lawyer must keep for at least six years after the termination of the representation any "portions of clients' files that are reasonably necessary for a complete understanding of the financial transactions pertaining to them." Also the lawyer must retain copies of all retainer and fee agreements and copies of all bills or statements rendered to clients. S.C. App. Ct. R. 417(a). These records may be retained by appropriate electronic means. S.C. App. Ct. R. 417(c).