I should note that I strongly believe that a critical issue for today’s law firms is to transition from paper files that to the use of digital files.
But this month we are going to discuss paper files; in particular, closed client files. Today, there are tens of thousands of boxes of closed client files sitting around in warehouses, storage buildings, spare offices and garages. Law firms spend untold thousands of dollars on closed file storage. Many of these could and, arguably, should have been destroyed long ago. In fact, it is not unheard of for a bar association to get a call from a lawyer’s widow asking what should be done with “all of these boxes” so the garage can again be used for parking the family automobile.
Letting one’s heirs deal with the mess is probably not the best way to ensure warm family memories of the departed lawyer.
So how does one avoid this fate?
Every law firm must have a file destruction policy. It must be in writing. It must be followed.
How long must you keep a client file after it is closed? The answer depends on your specific jurisdiction, and you’ll need to consult your ethics authorities or rules for specific advice.
No hard and fast rule can cover all situations. For example, Missouri has a ten year file retention rule. Thereafter the file may be destroyed. But some cases, such as representing minor plaintiff where a damages case was settled, it may be in the firm’s best interest to save that file for a longer time.
Once you create a policy, then there are three critical time frames:
• At the beginning of representation
When a new client engages the firm, the firm’s file destruction policy should be disclosed and agreed to by the client. That means it should be included in the engagement letter, attorney-client contract or some other document signed by the client when the new matter is opened.
The policy should state when a file will be destroyed. For example, “The firm retains closed files for at least five years after they are closed. They may then be destroyed without further notice to the client or former client.”
The policy should also include a reminder that copies of all pleadings and correspondence and most other documents are provided to the client during representation. The client should maintain a copy of the file and is free to do so for a longer period than the firm. Requests for additional copies from a closed file prior to destruction will involve both copying and research fees to retrieve the file.
• During representation
The key to being able to destroy a file on the appropriate future date is to make certain that everything in the file can be destroyed. So, with few exceptions, the file should only contain copies of any documents that were provided by the client.
If, for some reason, (such as future admission of an original into evidence in court) an original must be maintained in the file, then an “original documents” log should be maintained so when the file is closed, it is easy to know what original documents should be returned to the client at that time.
• When the file is closed
Closing the file is the time to prepare the file for destruction. Everything is fresh in the lawyer’s mind. The client’s current address and phone number are on hand in case additional material needs to be returned.
When a file is properly closed and its future destruction date logged, it should not have to be reviewed again prior to destruction.
This means the lawyer, or an experienced legal assistant, needs to review the file and prepare a brief memo noting that this has been done. Sometimes all that is need is a hand-written note within the file. All originals need to be returned to the client, and, in some instances, a receipt may be obtained.
As noted previously, there are times when an exception to the normal file destruction time frame is warranted. One of the assigned lawyers must verify this file is not an exception to the rule. In addition to files involving minor’s settlements, some states forbid the destruction of adoption files, and, since there is no statute of limitations for an ethics complaint against a lawyer the file of a very vocal unhappy client might also be deemed an exception.
The firm needs to maintain a closed files log which will never be destroyed, so that the firm can point to the date that a particular file was destroyed according to the firm policy.
When a file is closed, a standard file closing letter should be sent to the client, reminding him or her, among other things, that the file will be destroyed according to the previously-disclosed policy.
Some lawyers look to their closed files for precedents, briefs and forms. Harvest any forms at this time. Normally a digital copy will be preferred to a paper copy, both for ease of searching and ease of reuse. Documents that were filed in court can probably be retained in their current form, while contracts and other types of documents should have identifying information removed. Make sure that the general date of a document is preserved in case of later changes to the substantive law.
It should go without saying that file destruction means physical destruction, not delivery of the banker’s boxes to a landfill. Many vendors now provide this service.
There is no reason why digital client files should not be destroyed in generally the same manner as physical files. Closed digital files may be removed from the network and held in a separate “Closed file” drive or media until the destruction dates occur.
In the short term, this process may add a modest amount of time to the firm’s current file closing process. But in the long term, the firm saves on time and file storage costs. And in the case of some lawyers, it will free up the garage for their vehicles, instead of their dusty old boxes of files.