A Few Provisos, a Couple of Quid Pro Quos: Understanding the Exceptions to Rule 1.16A

I have written before about Colorado’s Ethics Rule 1.16A, the most helpful rule ever promulgated by the Colorado Supreme Court.  See Making Molehills Out of Mountains (9 April 2016).  Rule 1.16A provides both guidance and ethical safe harbors enabling Colorado lawyers to ethically manage their client file archives.

From the Attic to the Cellar

When I began practicing in 1981, our firm had just celebrated its fifth anniversary.  Our entire client archives could be housed of a small wood and chicken wire “cage” in the dark and somewhat musty attic of the 1892 Equitable Building where, as a clerk and young associate, I was sometimes sent to find and retrieve a file.  It was not an unpleasant task.  The Equitable Building attic was pleasantly cool both winter and summer.  A trip to its attic provided a brief escape from routine, and allowed one’s imagination to connect with ghosts of lawyers long passed, such as MaryFlorence Lathrop, who called the Equitable Building home since the day it opened nearly a century earlier.

When we moved to Seventeenth Street Plaza in 1987 we dragged our client files with us, where they were consigned to the nether regions of the 1982 high-rise until they outgrew the available space to be stored onsite. 

After then, like many firms, we enriched the coffers of Iron Mountain® by sending our client files to its massive warehouses.  Iron Mountain was like a cloud server for physical documents – infinitely scalable and not tied to our physical location.

Seventeen years and one move later – this time to 16 Market Square – we were still using Iron Mountain as our client file archive solution.  Out of sight was out of mind until the increased cost of that “infinitely scalable” storage, combined with constantly recurring charges for rush file delivery, finally caught and demanded our attention.   This epiphany occurred before Rule 1.16A, when there was little guidance on how to properly dispose of client files.  We spent months developing and implementing a protocol of notifying clients to come get their old files if they still wanted them.  Unsurprisingly, few clients took us up on that offer.

The implementation of our file retention and destruction protocol was a full-time job for our records department, as each file had to be reviewed to make sure that original documents – wills, deeds, certificates of trademark and copyright registration, and other papers having continuing legal force – were not committed to Iron Mountain’s fiery crematorium along with notes, drafts, correspondence, and pleadings that nobody cared about anymore.  

Implementation also consumed substantial attorney time since our protocol required our records staff to confirm any doubts about what should be kept with the attorney assigned to the file – assuming that attorney still practiced with our firm.  It was a Herculean labor, even for a firm then only 30 something years old, but we finally got on top of our mountain of paper  just about the time Rule 1.16A was adopted, nine years ago on 10 February 2011.

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