Record Keeping Duties

Record Keeping Duties

The last sentence of Rule 1.15(a) imposes a paper obligation. The lawyer must keep complete records of the account funds and other property held for clients or third persons. Those records must be preserved for a stated period after the representation terminates, and the Model Rule brackets that period at five years.¹ The sentence holds two separate commands, and the duty can be violated in two ways. A lawyer whose ledger covers some clients but skips others, or whose bank statements have gaps, fails the completeness command even if nothing is ever thrown away. A lawyer who keeps flawless records and then discards them early has satisfied the completeness command and broken the duration command. Both commands reach the money in the account and the other property the lawyer holds.

Safekeeping rules are only as good as the proof that the lawyer followed them, and the records supply that proof. Typically, detailed court rules govern the account itself, including which financial institutions may be used, how records are maintained, and how audits are performed.² An auditor can check the account only against records that exist. The records serve a second purpose: the same rule requires a lawyer, on request by the client or third person, to promptly render a full accounting regarding the property held.³ A lawyer who has discarded the ledger cannot give that accounting. The record-keeping duty is therefore what makes the accounting duty possible to perform.

The five years in the Model Rule appear in brackets, which marks the period as one each jurisdiction chooses, so a lawyer must look to the period the home state has adopted. The opinion in Attorney Grievance Commission of Maryland v. James quotes a version of the rule in concrete form: complete records of account funds and other property "shall be preserved for a period of five years after termination of the representation."⁴ The clock starts when the representation ends, and the date of any deposit has no bearing on it. A long matter can keep a lawyer holding funds for years, and a clock that started at each deposit would let the early records expire while the work was still going on. The period runs past termination because a client's challenge to a disbursement, or a disciplinary inquiry into it, may arise only after the lawyer has stopped acting for the client. The records have to exist when that challenge arrives.

Exam facts about premature destruction usually stress that no money was lost and that the lawyer was otherwise careful. Those facts are beside the point. The rule prescribes what the lawyer must do with the records, and it contains no element of misuse, harm, or concealment. Records that are incomplete violate the rule whether or not anything is destroyed. As with the other safekeeping duties, the absence of loss may bear on the sanction, but it does not remove the violation.