A Problem That Might Be Solved With a Can of Gasoline & Some Matches
Spring is the time for tidying up old things in preparation for new beginnings. It’s a great time to destroy old, closed files – in compliance with your office file retention/destruction policy, of course. If you have such a policy, it has been provided to your clients, and you properly closed the file when the work was completed, then file destruction is automatic and painless. If you don’t have such a policy, or you have not completely implemented it, you have some catching up to do.
So what should you include in your file retention/ destruction policy (“Policy”)? In short, it should provide your client with everything they need to know, up front, about what will happen once your work is complete. It should state: what you will return to the client when the file is closed; what material you will retain in your closed file; how long you will keep the closed file; and what you will do with it when that time is up. The Policy should be referenced in and attached to your initial engagement letter. So when the client signs the engagement letter, they agree to the terms of your Policy.
As soon as you create a Policy, you should send it to all of your current and past clients for whom you still have files. Past clients become harder to locate as time passes. And, if you don’t already have preapproval for destruction after a given amount of time has passed, you have an obligation to make reasonable efforts to find missing clients and obtain their consent to their file’s destruction.
A file is considered closed when you have completed the legal work, been paid for it, and have sent a letter to the client stating the representation is over. That “closing letter” should return to the client all of the client’s property, and it should remind the client of the existence of the Policy with a short sentence or two – “As you know, our policy is to retain your file for seven years and then to destroy it in a manner that protects its confidentiality. If you want all or part of your file before then, please make your request in writing and we will make it available to you.” However, before sending the closed file to storage, review it for any remaining property belonging to the client. This includes original deeds; mortgages; promissory notes; birth, marriage and death certificates; photos; any document with an original signature; and any non-document tangible property you received from the client.
As you review the file to retrieve all client property, you should purge from the file all documents which are duplicates, publicly available or kept on your electronic system (i.e. pleadings available online and/or are scanned into your e-system, deposition transcripts and exhibits which exist either on a disc or on your e-system and documents produced or received in discovery in e-format.) You also don’t need to keep copies of cases when there is a legal research memo which summarizes the research. Don’t forget to take out unused legal pads. And do it all now! It is easier to review and purge the paper files one at a time as you close them than it is at some later date, en masse.
Gather all related electronic files. This includes electronic data from servers, local hard drives, laptops, zip drives, memory sticks, flash drives and mobile devices – including emails, texts, document drafts, letters, charts, spreadsheets and databases. And don’t forget your time and billing records. All of these are part of the file you should retain. Now you are ready to retain the existing e-file and the reduced paper file for the retention period stated in your Policy.
Although there is no hard and fast answer to how long you should keep the file, my minimum retention for what looks to be a straight-forward file with no reasonable afterlife is seven years. Here are some other things to consider:
You must take reasonable steps to protect client confidential information even throughout the destruction process. So don’t just toss files in the closest dumpster. Shredding is always a good solution. If you are going to shred in-house, buy a commercial shredder which complies with the U.S. Department of Defense standards. You can also hire an outside vendor to shred. If you do this, have someone you trust stand in the truck and watch the files being shredded. You can also have the files recycled – but again, someone should accompany the files to watch that they are actually pulped into mash. If you opt for a document destruction service, select a company certified by the National Association for Information Destruction (NAID). And then there is always a can of gasoline and some matches...
Be sure to keep a log of file destruction so that you can prove how and when a particular file was destroyed. To some extent, we are required to be pack-rats in this profession. Don’t carry that burden any longer than you have to. Plan, organize, destroy, rejoice. It’s Spring!
By George D. Jonson, Esq.
George spends a significant part of his professional time defending lawyers in legal malpractice and disciplinary cases. In his off hours, he drinks bourbon and designs Totem Poles that he never gets around to carving.
You must take reasonable steps to protect client confidential information even throughout the destruction process."
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