For answers to questions about retention of client files, click here.
The State Bar has launched a task force to look at succession planning by lawyers. The lack of succession planning has an impact on the State Bar because in many cases the State Bar is appointed conservator over the practices of lawyers who have died, disappeared, become disabled or been disbarred. They have left either an ongoing practice that needs to be closed down or have abandoned client files. To preserve, return, protect and, possibly, eventually destroy unclaimed client files, the State Bar may petition under Rules 66 through 69, Ariz. R. Sup. Ct., to become conservator over a lawyer's practice – often consisting of just a lawyer’s files -- when no one else is available to close the practice. Over the past two years we have had an all-time high number of conservatorships and anticipate more.
When the State Bar becomes conservator, the State Bar takes possession of the client files. Pursuant to the Supreme Court rules and a Board of Governors policy, State Bar staff identify files that appear to be active or less than five years old. Those files are then inventoried to try to ascertain the clients’ names and addresses. Staff sends letters to the clients asking whether they want their files, and will try to return as many as possible.
Any files older than five years are stored and not inventoried. Only after the conservatorship is closed may the State Bar destroy the younger files that are not retrieved or the older files that are not inventoried. On average of twice a year these files are destroyed.
Before the files are destroyed, however, State Bar staff removes original wills and other estate-planning documents, as well as capital-murder and certain other criminal-related files. This is a time- and labor-intensive process. Currently, the State Bar simply stores those preserved documents in the event that someone knows to contact the State Bar about them.
As a result, the State Bar is storing several different categories of files: files that are awaiting to be or are in process of being inventoried; older files that are not being inventoried but must be stored until they can be destroyed; and documents and files that the State Bar has determined should not be destroyed and has culled from closed conservatorship matters. The State Bar is storing more than 1,600 boxes of files, most in a rented facility of about 2,300 square feet.
The Succession Planning Task Force has been presented with a staff proposal intended to reduce the amount of time the State Bar must store files before being able to destroy them. This understandably also would reduce the money the State Bar spends on this area. The draft policy also would direct that all unclaimed younger files and all files older than five years would eventually be destroyed, without culling out and storing any documents. Copies of the current policy as well as the draft policy are attached.
The Task Force wants input from you, as subject-matter experts, on the implications of this proposal. Keep in mind that when the State Bar takes over as conservator, it is explicitly not taking over as counsel for the clients, but simply attempting to return files to clients.
Please review the existing conversatorship process and the proposed process.
If you have comments, please submit them to firstname.lastname@example.org
by close of business Friday, November 8, 2013.