Fixing a bad ethics opinion – Kudos to the TN BPR!

Late in 2015, the Tennessee Board of Professional Responsibility issued Formal Ethics Opinion 2015-F-160 addressing issues regarding retention of client files.  I wrote here about a significant problem with the part of the opinion that indicated that our RPC 1.15(b) required retention of all client files for a five-year period.  The problem, to me, was of such significance that I couldn’t leave the criticism to a forum like this one where, if I’m lucky, it is read by a couple of hundred lawyers.  So, I also submitted a longer column about the problematic ethics opinion to the ABA/BNA Lawyers’ Manual on Professional Conduct, which was kind enough to accept it and publish it.

I am extremely pleased to report that the BPR has done the right thing and amended 2015-F-160.  You can go read 2015-F-160(a) in its entirety at the BPR”s website here.  But, the important takeaway can be summed up as: (1) only records of the funds (i.e. the kinds of financial records spelled out in more detail in Tenn. Sup. Ct. R. 9, Section 35.1(a)(2)) must be retained for five years; (2) the BPR does recommend as a guideline that lawyers retain all client files for 5 years from the end of the representation; and (3) lawyers and clients certainly can establish their own arrangement regarding a time period for retention.

As indicated in the title, the BPR deserves kudos for acting to amend this ethics opinion.

(P.S. While we’re fixing things, how about fixing the way Formal Ethics Opinions display on the BPR website?  Horizontal scrolling is a bad look – plus printing is a bit of a nightmare.)

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