Wisconsin Lawyer
Vol. 82, No. 8, August 2009
Effective law firm records-management programs provide ready access to physical and electronic client files from “cradle to grave” and manage the risks and costs associated with recordkeeping. The backbone of the program is a classification and filing plan that helps attorneys and staff systematically organize and file records, which in turn makes it easy to locate records for reference, use, preservation, production, release from the firm, or permanent disposition.
A records-retention schedule for client files lays out how long the firm will retain inactive records before they are destroyed or returned to the client. Retention schedules support a “regular course of business” approach to records disposition. Develop a schedule that meets your firm’s needs by reviewing ethics opinions and court rules in the states in which the firm practices, as well as statutes of limitation for professional-liability, negligence, and contract actions. Evaluate your firm’s specific practice areas for unique records-retention requirements.
Here are additional tips to facilitate the disposition of records:
1) Determine what are official records. Decide which records are “official” records that remain in the file after the matter closes. “Nonrecords” have no value and can be disposed of during the course of practice. “Convenience” records are used during the course of the matter, then purged when it closes. What remains are the official records that evidence the work the firm did for the client. Retain these records for the duration of the retention period.
2) Adopt a flexible retention schedule. Define a default retention period for all client files (for example, 10 years). Then define longer periods for certain practice areas (for example, estate planning, intellectual property, or real estate) or for certain types of documents (for example, contracts or bonds with specified performance provisions and vital records such as wills, minute books, and stock certificates). Don’t destroy records earlier than the defined periods, except when ordered to do so by a court or mandated to do so by a nondisclosure agreement.
3) Apply retention periods equally to both physical and electronic records. Do not treat electronic records as anything other than another component of the client file. If the firm has classified and filed electronic records in the same way as paper records, it will be easy to ensure that the entire file is disposed of in accordance with firm policy and client instructions.
4) Define triggering events. Define an event, such as matter closing, that triggers the retention period for the closed file.
5) Notify your clients regarding the firm’s retention policies. Provide notice in the initial engagement letter, at the end of the matter, and at the end of the retention period.
6) Destroy records in a manner that safeguards client confidentiality. Destroy physical records with a method, such as cross-cut shredding or pulverizing, that precludes access and reconstruction. Destroy electronic records by eliminating the “pointers” to their storage locations on the firm’s systems, and then overwrite these storage spaces with new data.
Be prepared to suspend scheduled destruction in the event of a pending or potential lawsuit, claim, or investigation.
Wisconsin Lawyer
