File Retention and Destruction Policy.

Shainbrown Komin, PLLC 

Last Modified January 1, 2022 

This policy is set forth to memorialize the Firm’s processes and procedures for retention, review and destruction of client files following termination of representation. It is intended to ensure the Firm’s compliance with applicable legal and ethical obligations to former clients, including the ethical rules of New York State. 

File Closing Procedures 

Following termination of representation for any reason, including withdrawal of the Firm from representation, termination at client’s request, or conclusion of the matter for which the Firm was engaged, the client’s file shall be closed. Closing of the file shall be performed by the attorney in charge of the matter or an attorney designated directly by the attorney in charge and entails: 

·               Ensuring documentation of termination of representation by whatever means is in the file and has been provided to client 

·               Ensuring all outstanding fees have been received by Firm, client funds have been distributed and final accounting prepared and provided to client 

·               If termination of representation is because matter has concluded, confirm true finality of matter based upon type of file (i.e., in litigation confirm that final judgment has been satisfied or appeals exhausted or abandoned, in bankruptcy confirm final discharge of debtor, etc.) 

·               Confirm that client property in file has been returned (with copy retained in file) or if retained in file has been marked as client property for return to client at time of file destruction 

·               Confirm that all attorneys working on the matter have culled their own working files for any materials which rightfully belong in the Firm’s official file 

·               Mark file for review when time period for storage (see below) has been reached 

At the time of file closing, extraneous documents may be discarded at the closing attorney’s discretion. Such extraneous documents may include notes, drafts, extra copies of documents, hard copies of electronically-available documents. 

Storage of Retained Files 

During the file retention period, all hard copy files shall be stored at [physical location]. All electronic files shall be housed by backed up tape at 65 Deer Run, Williamsville, New York or 560 Delaware Avenue, Buffalo, New York 14202. 

Time Period for Storage of Files 

All files shall be maintained for a minimum period of seven (7) years. 

Materials Not To Be Destroyed 

Certain files and materials are not to be destroyed even if they have been maintained for the required period of storage. Such files and materials are: 

·               Files containing outstanding judgments or structured settlements not yet fully satisfied 

·               Files pertaining to the rights of minor children until both the children have reached the age of majority and the statute of limitations applicable to any potential claims arising from the file have expired 

·               Matrimony files involving ongoing support obligations 

·               Criminal files should be retained until any period of incarceration and parole has expired 

·               Estate planning files should be retained until the estate has been distributed 

·               Materials of legal significance which for any reason cannot be or have not been returned to the client, including but not limited to recorded deeds, vital records (birth, marriage, death certificates), original bills of sale, original incorporation documents, stock or bond certificates, trademark and copyright registrations and original patents 

Procedures Before Destruction 

Upon the attorney in charge determining that destruction of a file is appropriate, the following procedures shall be followed: 

·               A letter shall be sent to the client at the client’s last known address informing them of the intended destruction and providing a date certain by which to respond if the client would like to retrieve the file from the Firm. The letter shall include reference to the length of time the file has been held and specifically note that the file has been retained in accordance with the Firm’s policy on file retention. The letter shall explicitly state the method by which the file will be destroyed. 

·               If the Firm regularly communicated with the client by a means other than hard copy letters (i.e., via email), send a copy of the letter by the secondary means. 

·               Await the date certain stated in the letter before destroying the file. 

·               If client responds to the letter, follow client instructions on handling of file. 

·               If client does not respond to the letter and the specific date passes, schedule the file for destruction. 

Procedures for File Destruction 

Upon determination in accordance with the guidelines set forth herein that destruction is appropriate, files shall be destroyed in a manner that preserves client confidences. Such manners for hard copy files include shredding, pulping, or any other method utilized by services which regularly in the course of business verify complete destruction of sensitive documents. Such manners for electronically stored materials include any method utilized by services which regularly in the course of business verify complete destruction of electronic materials. 

The Firm shall maintain indefinitely (1) a record of the attorney in charge of reviewing the file’s approval of file destruction and (2) verification from the service or individual who performed the file destruction that such destruction was carried out. Such records shall include the date, location and method of destruction employed. 

Any use of an outside vendor to complete file destruction requires a binding non-disclosure agreement between the Firm and the vendor. A copy of this agreement shall be maintained with the verification by the vendor of the file’s destruction.