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Issue 35 | September 2015

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Record retention and the Limitation of Actions Act

Given the ultimate limitation period of 15 years in the now proclaimed Limitation of Actions Act (LAA), lawyers are asking what impact that has on their obligations to keep documents. That answer can be found in the Law Office Management Committee standard on record retention: http://www.lians.ca/standards/law-office-management-standards/1-record-retention

There remains no one single answer – how long a lawyer is to maintain records depends very much upon (as the standard sets out):

      a.    legal and regulatory requirements;
      b.    clients’ needs and abilities;
      c.    the nature of the matter;
      d.    limitation periods.

In addition, lawyers should review files on closing to ensure that original documents are returned to their clients and that duplicate documents are not retained. After the appropriate amount of time, some files can simply be carefully and confidentially destroyed.

Keep in mind, however, that the amendments to the LAA do not apply to real property matters. Those limitation periods are dealt with in the Real Property Limitations Act. 

Therefore, lawyers will need to exercise their professional judgment in keeping with their obligations.