The proper management of case files has practical and ethical implications. Here are 30 legal spring cleaning tips on file retention and destruction best practices.
File Retention
With the number of files growing every year, staying organized is key to an efficient and stress-free process. Here are tips to help you do it.
1. Have a process.
The right steps are key when closing a file. If a good process isn’t in place, problems with conflicts of interest, document retention and client complaints will be more likely.
2. Close files promptly.
It’s less work and worry to do it now. Open-yet-inactive files are more likely to be missed in a conflicts check where you focus on either fully active or closed case matters.
3. Avoid file ambiguity.
Implement safeguards to monitor the status of engagements and client relationships and take steps to document when a matter or representation has come to an end.
4. Use a three-step process.
When a client or case becomes inactive, 1. send the client a closing letter, 2. account for outstanding payments and 3. initiate your administrative closing procedures.
5. Make closing letters readable.
A clear, complete and easily readable letter is key. Avoid unnecessary legal jargon or any ambiguity about the nature and purpose of your closing letter.
6. Review the facts.
In your closing letter, restate the nature and scope of the representation, confirm how the matter was resolved and tell the client to contact you if any case aspects remain unfinished.
7. Ensure you are paid.
Review expenses, bills and funds paid. Only close a file after everything has been paid in full. Remember to refund fees and advances that haven’t been earned.
8. Get it in writing.
Any verbal discussions you have had with the client about closing the file should be documented in writing. You may need to refer back to such notes at a later date.
9. Consider a file memo.
Drafting a closing file memo is a tactic many attorneys use to provide a permanent record of their representation and a concise summary of the case matter.
10. Flag recently closed files.
It may take time to fully wrap up some representations or case matters. Flag recently closed files for a second review in a few months to ensure no loose ends.
11. Uphold professional obligations.
Even after a case is closed, clients continue to own the file. Remember that a duty of client confidentiality also continues to apply after a file is closed.
12. Consider going paperless.
Many firms now maintain digital files, either in part or in whole. Converting paper documents to an electronic format can save considerable time and space.
13. Recycle applicable work.
Many attorneys develop a system where briefs, research and other work from closed cases can be easily accessed for use in future relevant case matters.
14. Consider a file quarantine.
Attorney Protective notes 95% of all references back to a closed file happen within a year of the closing date. Make sure recently closed files are easily accessible.
File Destruction
File destruction best practices tie in closely with those for file retention. You’ll need to research retention requirements, set up a system and then follow through on it. Here are more tips.
1. Get started.
If you haven’t yet created a file management policy, resources are available to help. Minimum retention rules set out by state legislatures and bar associations are a good place to start.
2. Consult ABA resources.
ABA Model Rule 1.15, Rule 1.16(d) and Informal Opinion 1384 all address the retention of case matter records and stewardship of a client’s property.
3. Note variations in rules.
Individual states and their bar associations have different ideas of how long to retain files. For example, some jurisdictions in California require five years, while ones in Illinois say seven.
4. Longest period is the minimum.
Whatever local standard applicable to your firm that requires the longest period of document retention should be the minimum duration you consider keeping a file.
5. Research the statute of limitations.
A complete, documented file may be your best defense in a client dispute. Plan to keep files the full duration of your state’s statute of limitations for legal malpractice.
6. Check for pending litigation.
Even accidental violation of a litigation hold can have serious consequences. Prior to file destruction, check for any active government investigations or litigation actions.
7. Note the file contents.
Original documents like wills, deeds and certain contracts require special consideration. Consider the lifespan of the document, expiration date of any contracts and state-dictated guidelines.
8. Evaluate files case by case.
File contents can be sensitive. Private materials such as journals and photographs, plus records such as trust fund receipts and disbursements should receive special handling.
9. Obtain client consent.
In general, a lawyer should not destroy or discard items that clearly or probably belong to the client unless that client has provided their consent to their destruction.
10. Observe needs and expectations.
Generally, lawyers should take care not to destroy information not available in the public record or that the client may need and would expect a lawyer to preserve.
11. Consider the client relationship.
Was it difficult? Was litigation contentious? Was the outcome favorable? Could there be another case? Would it be difficult to reconstruct any destroyed materials?
12. Tell clients your policy.
Engagement letters should make clear your file retention and destruction policies. Consider reminding clients about your policies within your closing letters to them.
13. Send a file destruction notice.
Learning that you intend to destroy the file according to your policy may prompt a client to reach out to retrieve it, save you the trouble and tidy up your files.
14. Protect client confidentiality.
When you do determine file materials can be destroyed, protect client confidentiality. Consider engaging the services of a professional shredding service.
15. Maintain an index.
When you decide to destroy an outdated file or return it to a client, make sure to maintain an index of those files. Note the relevant dates and what was done with the file.
16. Follow your policy.
A file retention and destruction policy only works when you follow it. If there’s a question of whether to get rid of something, do additional research or get the opinion of a colleague.
Conclusion
Lastly, remember that even by developing a robust file maintenance system and following best practices, claims are still possible. Malpractice actions are more common than many lawyers think, and can occur through no fault of your own. The right insurance protects you.
Lockton Affinity Lawyer leads the industry in its protection, with broad coverage and flexible limits tailored to suit the particular risks of your industry. Discover more benefits for your business today. Go to LocktonAffinityLawyer.com or call us at (844) 398-0465 to get started.