Standard

[previously LOMC Standard ‘Record Retention’ & LOMC Standard ‘Maintenance and Backup of Electronic Data’, merged February 27, 2026]

Lawyers are responsible for the storage, maintenance and access to client property in the lawyer’s possession.1

Lawyers must adopt systems that ensure the maintenance, backup, storage and access to all client information2 and lawyer’s business records3 whether in printed or electronic form while ensuring and maintaining client confidentiality.4

A lawyers’ obligation to maintain confidentiality includes an obligation for the timely disposal of client information having regards to privacy law5, limitation periods, the nature of the information6, and obligations under the lawyer’s liability insurance7. To facilitate this, a lawyer must adopt an internal policy in writing for file closure, retention, and destruction.

Notes

1 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, rule 3.5-2

2Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, section 3.5

3Lawyers are required to keep business records for 7 years, see NSBS Regulation 10.4.1

4Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, section 3.5.

5Lawyers have an obligation to protect clients’ privacy interest and, as mandated by legislation, to destroy files once they are no longer needed. In taking all reasonable steps to protect clients, law firms and lawyers must not:
1)Collect personal information that is not necessary for the purpose; and
2)Retain client files when retention is no longer necessary.

See PIPEDA Principle 5 —Limiting Use, Disclosure, and Retention: Personal information shall be retained only as long as necessary for the fulfilment of those purposes.

6To determine when a file is no longer needed, a lawyer shall maintain and consistently apply a file destruction policy as guided by the application of the Limitations of Actions Act’s ultimate limitation period as an outside date of retention and the nature of each file. Where file retention is no longer needed, the lawyer must destroy it.

7The current liability policy covering lawyers in Nova Scotia requires lawyers to provide reasonable assistance with the defence and reasonable production of file information: 4.3(b) Information. After notification, the Insured shall submit promptly to the person(s) designated by the Insurer all information reasonably required by the Insurer that the Insured is reasonably capable of providing. … 4.4 (d) Co-operation. The Insured shall co-operate fully with the Insurer and LIANS and, upon request, shall: … -assist in conduct of the defence in all other reasonable respects.

Additional Resources

Commentary

Retention and Maintenance
A lawyer is responsible to store and maintain all information in the lawyer’s possession whether it is in an electronic or paper format. The responsibility to maintain and safeguard information entrusted to the lawyer is the same whatever format the information is in. However, the method the lawyer chooses to discharge the responsibility will vary depending on what form the information is in and the lawyer’s practice. The lawyer must protect the information from foreseeable dangers such as natural disasters, theft, vandalism, computer failure or online security issues.

Where a lawyer chooses to print information and keep a paper file, the lawyer will have to consider safe and secure storage options for the file until it can be destroyed in accordance with the lawyer’s obligations. Options for safe storage include commercial storage facilities, onsite storage locker and fire and water proof safes. The most effective way to safeguard against any disaster is to have more than one copy of the file in two different locations.

If the information is in an electronic format, safe and effective storage may be achieved by a combination of storage on the lawyer’s computer, external hard drives and cloud computing. As with paper files, it is a good idea to store copies of files in different locations.

Lawyers should adopt written policies detailing file retention, closure and destruction procedures saving regards to the nature of the file, client needs and abilities, legal and regulatory requirements and applicable limitation periods.

As part of a lawyer’s obligation to care for a client’s property, lawyers are expected not only to maintain client records, but to maintain them in a manner that allows for them to be practically accessible, with special considerations given to lawyers or clients with disabilities when choosing file format. This not only allows a lawyer to complete his / her ethical obligations, it makes good business sense.

There has been no shortage of disasters in the last few years, from flooding to hurricanes to fires to crane collapses. Such a disaster can drive lawyers out of their offices, prevent access to client files, disrupt communications and put time-sensitive matters at risk.

There are many ways to backup information. Lawyers should use a combination of methods to mitigate against potential disasters. A lawyer should ensure that he or she reviews the technology of their backup on a regular basis.

There are a variety of methods to backup electronic data. Lawyers will need to determine the method best suited to their individual / firm needs. For some lawyers, this may mean backing up data to an external hard drive which is then stored in a separate location (such as your home); for other lawyers, this may mean using a cloud based service provider; for firms, this may mean using a separate server in a secure location.

It is recommended that lawyers set up automatic backups of all their data. Otherwise the frequency of backup may depend on the nature of their practice and the amount of work they produce. Each lawyer has an obligation to ensure they have a policy that their electronic data is backed up in a timely fashion and at a frequency that is appropriate to ensuring all client information is available should there be a problem. For most lawyers this would be at least daily and depending on the nature of the lawyer’s work it could be even more frequently. A lawyer simply needs to ensure that as much electronic data as possible is backed up in the event of a disaster.

Simply putting a process in place to backup electronic data and then assuming it works and continues to work is not sufficient. Regular testing should be done to ensure that the backup is working and remains accessible. Each lawyer should have in place a policy to test their electronic backup system on a regular basis.

The overriding goal of any backup system is to ensure that in the event of an emergency business can continue without any interruption. Clients can continue to access their file material as necessary and lawyers are able to access their files to continue work with as little impact on productivity as possible. If a lawyer keeps that in mind as well as the overriding issues with respect to client confidentiality then it is possible to adopt and develop a policy with respect to the backup and storage of electronic data.

Destruction
The lawyer’s obligation to maintain files only exists as long as maintaining the file is necessary. Lawyers have a legal obligation not to collect or maintain information where it is no longer necessary to do so in accordance with privacy legislation. Where a file is no longer needed, a file must be destroyed.

The ultimate limitations period may be an indicator of necessity having regards to the nature of their file. For example, the 15-year limitation period for a personal injury judgment involving a minor may not start at the same time as one involving an adult and therefor the file may have to be maintained longer. The retention of instructions in wills files may vary greatly depending on the facts and the legal obligations that flow from these files.

However, the ultimate limitations period is only a guide as each lawyer must develop its own file destruction policies. As long as the file destruction policy is defensible and consistently applied, lawyers will meet their obligations under the standards.

Lawyers may wish to use NSBS’ resources: File Retention & Destruction Template Policy and Basic Privacy Policy. Legal Services Support is available to assist firms in uncovering and meeting their obligations.

Approved by Council on February 27, 2026.