Managing Risk
Does the New "Dumpster Diving" Law Apply to You?
Negligent disposal of medical and financial
information could land your firm in hot water.
by Ann Massie Nelson
Lawyers who do not properly dispose of clients' personal medical and
financial information could be subject to civil and criminal penalties
under Wisconsin's new "dumpster diving" rules, which became law Feb. 1,
2000.
The new law for disposing of confidential medical and financial
information was enacted by the Wisconsin Legislature to bolster
individuals' rights to privacy, according to Scott B. Franklin, an
attorney and tax manager with Kohler & Franklin CPAs, Milwaukee. A
similar federal law is slated to take effect in November 2000.
Three types of enterprise were identified in
the new law (Wis. Stat. section
895.505): financial institutions, medical "businesses," and tax
preparation businesses. The rule also applies to persons under contract
with these types of businesses. Law firms were not specifically named in
the new rule, but then, neither were hospitals nor clinics, Franklin
points out.
"Certainly, a law firm that prepares individual tax returns would
qualify under this law," Franklin says. "Broadly interpreted, the law
could apply to any law firm that handles personal injury, tax,
bankruptcy, debt collection, divorce, estate planning, or other
representation involving confidential medical or financial
information."
The new law requires that personally identifiable records containing
financial, medical, and tax information be shredded, erased, made
unreadable, or otherwise disposed of so that no unauthorized person has
access to the information. Businesses that fail to comply with the law
are liable for any damages sustained by the person whose personal
information was revealed and forfeitures of up to $1,000 per violation.
Any person who possesses a disposed record with intent to use personal
information (aka, the dumpster diver) is liable both to the individual
and to the business for any resulting damages. The dumpster diver also
may be fined up to $1,000 and imprisoned for up to 90 days.
Ethical Duty Hasn't Changed
"You may question whether the dumpster diving law applies to you, but
keep in mind that - but for the new civil or criminal penalties imposed
- nothing has changed vis-a-vis a lawyer's professional responsibility
to maintain, dispose of, and destroy client files in an appropriate
manner," according to Sally E. Anderson, claims counsel at Wisconsin
Lawyers Mutual Insurance Co. (See SCR
20:1.6, Confidentiality of Information.)
Nonclient documents also may qualify under the new rule, Anderson
says. For example, an insurance defense attorney in a personal injury
case may be liable for carelessly discarding the claimant's medical
records.
The new Wisconsin law elevates the disposal of all client records to
a higher standard of care, according to Franklin. "Are you going to
leave it to your support staff to determine if a file contains
personally identifiable medical or financial information?" he asks. "Law
firms need to shred everything before disposal so nothing falls through
the cracks."
Your ethical and legal duty to safeguard documents from desktop to
landfill begins with the first act of representation and continues
through file closing and disposal. Paper you churn out during the
representation - draft documents, photocopies, handwritten notes of
conversations, telephone message slips - needs to be treated with the
same care as a divorce decree or bankruptcy petition.
Recommendations to Consider
Anderson and Franklin offer the following observations.
- Develop a firm policy for document retention and disposal. Educate
all members of your firm about your ethical and legal obligations to
protect client confidentiality.
- Discuss file disposal with clients at the time they retain you. In
your letter of disengagement, describe your file retention policy.
Before destroying files, attempt to obtain clients' written consent.
- Purchase a high-capacity, electric shredder and install it where
lawyers and staff members can access it easily. Make sure the shredded
product is unrecognizable. The new rule does not define "shred," but
ripping a paper in half or quarters probably doesn't cut it.
- Shred as you go. The new rule does not state when "disposal" occurs.
When you toss documents in a "to-shred" box under your desk, are you
disposing of them? Or, does disposal occur when the documents leave your
locked premises? Personal shredders that fit over wastebaskets may be
convenient but won't suffice for big shredding jobs.
- If you have a large volume of shredding to do, contract with a
mobile shredding service to send a truck to your parking lot and shred
documents in your presence. Consider sharing this expense with other
tenants in your office building.
- Hire a bonded waste management company that uses locked dumpsters.
- Deliver disposed records to a bonded recycling service that allows
you to watch the shredding.
- Emphasize to all members of your firm that simply pressing the
delete key does not destroy an electronic document. If you are selling
or disposing of computer equipment, make sure hard drives are
reconfigured so that no records remain.
- Educate clients on their need to maintain confidentiality of legal
documents and correspondence from your law firm.
- Keep an inventory of destroyed records. It will save you time spent
later looking for documents that no longer exist.
Ann Massie Nelson is communications
director at Wisconsin Lawyers Mutual Insurance Co., Madison.
Anderson cautions law firms to avoid simply shredding or erasing all
records after a set length of time. The Wisconsin statute of limitation
for legal malpractice claims is six years from the date of discovery,
which means an error or omission may not come to light until long after
the client file - often the only documentation - is destroyed.
Need More Information?
For information about the new rule and what it means for your
clients, see Scott B. Franklin's article, "Disposing
Medical, Financial Records," in the December 1999 Wisconsin
Lawyer.
For staff training, consider purchasing "Law Office Confidentiality,"
one of the State Bar of Wisconsin's Law Office Videotape series. You may
order videos online or by calling the State Bar
toll-free at (800) 728-7788.
For recommendations about file management, see Wisconsin
Ethics Opinion E-98-1: Disposition of Closed Client Files, July 1998
Wisconsin Lawyer; "Closed Files are Best Defense in Malpractice
Claim," June 1995 Wisconsin Lawyer; and "File
Custody Battles are Common When Lawyers Leave Firms," September 1998
Wisconsin Lawyer.
For a copy of the new law, see Wisconsin Statutes section
895.505.
Wisconsin
Lawyer