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Bar News - March 19, 2010

Taming the Client Record Beast


A self described "confused solo running out of room" recently contacted me about a problem that was overwhelming her practice. She had been on her own for just three years but had already accumulated more than 20 bankers’ boxes of case files. Ideally she wanted to scan everything but important originals like contracts, keep the scanned electronic files in multiple locations for security, then shred everything else – which she estimated would leave her with just two bankers’ boxes. It seemed the perfect solution, but she was uncertain whether this process was acceptable or allowed under ethics rules.

My advice was simple: go for it! Rule of Professional Conduct 1.15 requires that client property and files be "appropriately safeguarded." The rule stipulates no minimum time concerning how long this safeguarding must be done. Failure to provide for the security of these files is a failure in the overall duty to act competently in the best interests of a client. However, there are all kinds of ways to approach this duty, including this lawyer’s strategy.

The best approach, of course, is to return valuable documents and other property to the client. This can include such things as original notes or securities, as well as original wills and settlement agreements. Consider a provision in your engagement agreement that allows for return of the valuable documents and property to a last known address at the conclusion of a matter (for example, once the will is probated in estate planning matters) or by a date certain (for example, by July 1st), whichever first occurs. An alternative is a formal letter to clients directing them to pick up their files within a stated time, say 30 days.

Contacting clients about their files is a great marketing opportunity. It allows you to update your contact list, send letters to former clients offering them the option of picking up their file or have it shredded – and to mention, "Oh by the way, if we can help you in your current challenges, call us." It’s often surprising how many calls will come in, proving a new variation on an old adage: "out of mind, out of sight." When you get back into clients’ sight with such a letter/note, they will remember the things they intended to do with a lawyer and then call you, their latest legal contact.

If you go the paper shredding/electronic file storage route, check the rules and specific time periods in your jurisdiction for storing or destroying client files. Some states, for example, require a lawyer to securely store a client’s file for up to 10 years after completion or termination of the representation absent other arrangements between the lawyer and client. After the storage time has lapsed, destroy the paper files by shredding the hard copies through the services of company that assures security in the shredding process. Be sure to keep copies of the electronic files in several locations as an added layer of security. You’ll not only have more space in your office – you’ll now have a file database that is easily searchable, saving both time and money. So long as you comply with jurisdictional rules, you have nothing to lose but your clutter.

This article, from Lawyers USA, January 2010, is reprinted with permission. Ed Poll is a nationally recognized expert in law practice management.

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