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South Carolina
JUDICIAL DEPARTMENT
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2012-03-01-01

The Supreme Court of South Carolina

Re: Amendments to Rule 1.15, RPC,
Rule 407, South Carolina Appellate Court Rules


O R D E R


Pursuant to Article V, § 4, of the South Carolina Constitution, Rule 1.15, RPC, Rule 407, South Carolina Appellate Court Rules, is amended as set forth in the attachment to this order.  The amendments are effective immediately. 

s/Jean H. Toal                                    C.J.

s/Costa M. Pleicones                          J.

s/Donald W. Beatty                             J.

s/John W. Kittredge                             J.

s/Kaye G. Hearn                                  J.

Columbia, South Carolina
March 1, 2012


Rule 1.15, RPC, Rule 407, SCACR, is amended by adding Paragraph (i) and Comments 12 and 13 to the Rule: 

(i)  Absent any obligation to retain a client's file which is imposed by law, court order, or rules of a tribunal, a lawyer shall securely store a client's file for a minimum of six (6) years after completion or termination of the representation unless: 

(1)  the lawyer delivers the file to the client or the client's designee; or

(2)  the client authorizes destruction of the file in a writing signed by the client, and there are no pending or threatened legal proceedings known to the lawyer that relate to the matter.

If the client does not request the file within six (6) years after completion or termination of the representation, the file may be deemed abandoned by the client and may be destroyed unless there are pending or threatened legal proceedings known to the lawyer that relate to the matter.  A lawyer who elects to destroy files shall do so in a manner which protects client confidentiality. 

Comments:

[12] A lawyer who destroys a client file pursuant to Paragraph (i) must do so in a manner which protects client confidentiality, such as by shredding paper copies of the file.  This rule does not affect the lawyer's obligation to return the client file and other client property upon demand in accordance with Rule 1.15 or the lawyer's obligations pursuant to Rule 1.16(d). 

[13] A lawyer may not destroy a file under Paragraph (i) if the lawyer knows or has reason to know that there are legal proceedings pending or threatened that relate to the matter for which the lawyer created the files.  Examples include post-conviction relief and professional liability actions against the lawyer.  Nothing in the rule prohibits a lawyer from converting files to an electronically stored format, provided the lawyer is capable of producing a paper version if necessary.  Attorneys and firms should create file retention polices and clearly communicate those policies to clients.