Over retention of records: why keeping records for too long can increase your costs. Gain some ideas to create a document and records management plan. MCS Management Services is a leading provider of on-site business support services, including mail center operations, shipping and receiving, records management, document and print center management, in-house litigation support, managed print services and related professional services.

1. Records & Information
Management for
the Law Firm
Why keeping records for too
long can increase your costs
May 2012

2. Records Retention Dilemma
• Many law firms abide by a “better safe than sorry” policy
when it comes to managing records.
• In practice, this policy can
become “keep everything,
forever.”

3. • 2011 Law Firm Information Management Survey
• 35 percent of firms cited attorney reluctance to destroy
client files as the single largest barrier to records
destruction programs.1
• So, law firms frequently plan to keep documents long
after clients have divested themselves of them.

4. • Retaining records forever can have tremendous negative
consequences:
• Fines and sanctions
• Legal action for bad faith, information spoilage or
obstruction of justice
Ironically, avoiding legal action is the
reason most law firms keep records
too long in the first place!

5. • Most courts allow electronic archiving and the good faith
destruction of files if the process is:
• In line with industry best practices
• Undertaken as part of of a consistently applied records and
(electronic) information management (RIM) policy

6. What’s a RIM Policy?
• A risk management tool that covers paper documents and
electronically stored information (ESI)
• 79 percent of law firms have a RIM policy
• 39 percent of firms with a RIM policy indicate it only
covers paper records1

7. What’s a RIM Policy?
• By implementing a RIM strategy that addresses a
document’s entire lifecycle, legal administrators can help
their firms:
• Save money
• Save time
• Reduce risk of litigation

8. Document Management Systems
• Legal administrators usually receive very little direction on
document retention and destruction strategies.
• They often receive fewer
resources on how to
implement document
management systems
(DMS).

9. • Without a DMS and RIM policy, records kept beyond
legally prescribed retention periods can be detrimental.
• Storing boxes onsite occupies valuable office space,
effectively raising a firm’s per-square-foot cost
on its lease or mortgage.
• Storing boxes offsite is a matter of dollars
and cents — storage facilities cost more.
• Over-retention can sap productivity, chewing up
man-hours on document searches, recovery and
preservation.

10. • Firms are responsible for locating and delivering
documents under subpoena if they still have them,
regardless of age. This would not be required if the
firm properly managed the record.
• A suit can be brought if malpractice is identified
in records that the firm has kept beyond the
legally prescribed retention period. Timely record
destruction could prevent this situation.

11. • Guidelines and best practices for record retention vary by
state and the type of document.
• However, there are many opinions, best practices and
guidelines to help legal administrators avoid common
record management pitfalls.

12. Avoiding Over-Retention
• Implement a record retention policy to properly manage
the record’s lifecycle
• FIRST: Define the record’s lifecycle

13. Defining Record Lifecycle
• Create list of “must keep,” “maybe keep” and “discard”
documents and ESI based on record type.
• Identify legal requirements for retention
time for different record types.

14. • Determine all storage parameters
• New record induction process
• Locations
• Access policies
• Maintenance processes
• Destruction processes

15. • Personnel
• Designate responsibilities and restrictions for those
involved with RIM policies
• Enforcing
• Monitoring
• Updating

16. • Develop compliance policy
• Include penalties for non-compliance
• Distribute policy to all employees and ensure
it is acknowledged

17. Centralized Electronic DMS
• Once lifecycle is determined, move as many records from
hard copy to electronic format as soon as possible.
• Centralized electronic DMS:
• Is more efficient than a paper system
• Reduces errors
• Helps eliminate office clutter
17

18. Opinions on Records Retention
• New York Bar Association Committee on Professional Ethics2
• “All checkbooks and checkstubs, bank statements,
prenumbered cancelled checks and duplicate deposit slips”
and any other documents referred to in Rule DR 9-102(D)8
must be kept in original paper form for seven years.
• Where the Rule permits copies, copying to electronic media
is acceptable.
• Paper records may be destroyed after the transfer to
electronic record is complete.

19. • State Bar Ethics Committee of Virginia3
• No per se ethical prohibition against maintaining paperless
client files.
• Lawyers may require clients to consent to the use of
electronic files as a condition of representation.
• Firms may destroy paper documents with client consent,
retaining only scanned electronic copies, with exception of
items of independent legal significance such as testamentary
documents and marriage certificates.

20. • Maine Opinion 183 (January 28, 2004)
• Firms may store client correspondence and documents in
electronic format without keeping paper copies as long as it is
done in a way that gives client and lawyer access to them in
the future.

21. To Keep or Not to Keep
• Knowing the start and stop dates for records is the most
critical step in efficient records management.
• The American Bar Association and many state bars provide
detailed guidance on how long to keep client files and how to
communicate with the client about destruction policies.

22. • Industry associations and third-party information
management partners are also good resources for best
practices and other information to help law firms get
comfortable with all aspects of RIM, including defensibly
destroying client files.

23. • A lawyer’s obligation to maintain client records has its
foundations in rule 1.15 of the ABA Model Rules of
Professional Conduct:
• (a) A lawyer shall hold property of clients or third persons that is
in a lawyer’s possession in connection with a representation
separate from the lawyer’s own property … [P]roperty shall be
identified as such and appropriately safeguarded. Complete
records of such … property shall be kept by the lawyer and
shall be preserved for a period of [five years] after termination
of the representation.”4

24. • Firms have an obligation to preserve evidence once they are
notified that litigation might occur. [Renda Marine v. United
States, 88 Fed. Cl. 57 (Fed. Cl. 2003).]
• At the latest, the duty to preserve arises when the complaint is
served.5
• Once preservation starts, how long must a record be kept?
• That depends on the state and type of record.
• For example, New York specifies a seven-year retention
period as its standard.

25. • The ABA recommends the following:
• “ … retain original papers and property received from clients,
including estate-planning documents, according to the law
deposits and the Probate Code. Other client papers and
property in civil cases, including correspondence, pleadings,
deposition transcripts, exhibits, physical evidence, and
experts’ reports may be destroyed, absent a prior contrary
agreement, after the lawyer uses reasonable means to notify
the client of of their intended destruction and gives the client
a reasonable time to respond.6

26. • ABA recommendations (continued):
• “ If the lawyer is unable to located the former client, the
lawyer may destroy items whose retention is not required by
law and is not reasonably necessary to the client’s future
legal representation. Anything the former client will
reasonable need to establish a right or a defense to a client
should be retained for an amount of time determined by the
lawyer’s ‘good common sense.’ Files in criminal cases
should never be destroyed while the former client is alive
without the former client’s express consent.6

27. • ABA also refers to Maine Opinion 187 (11/5/04)
• A lawyer must preserve and, upon request, deliver to the
client all client property and any material not otherwise
available to the client that another lawyer or the client
would reasonably need to take up representation in the
matter. This would typically exclude timesheets, billing
accounts, internal administrative papers, memos on
staffing options and similar documents not useful in
continued representation.

28. Best Policy for Disposal of Closed Records
• Once the minimum retention period time is reached, use
sound judgment and, where appropriate, seek input from a
malpractice carrier and a third-party RIM specialist.
• At some point in time, the client's consent to destroy the file
is implicit.
• It is the law firm’s right to actively manage its document
archive to avoid a negative impact on the firm.

29. Review: Strategies for RIM
• Set out a file retention policy in every representation agreement
and to reiterate it in the final letter sent to the client at the
conclusion of the representation.
• Create a firm-wide RIM policy for all paper and electronic
documents and update it regularly.
• Use an electronic DMS and convert paper documents to
electronic files as early in the workflow as possible to improve
accuracy and speed.
• Recognize the benefits to timely record destruction.

30. Conclusion
• By implementing these strategies and addressing a
document’s entire lifecycle, legal administrators can help
their firms save money, save time and reduce the risk of
litigation.

31. References
1. “Law Firm Information Management Benchmark Report: Find Out How You Measure
Up.” Iron Mountain, Inc. 2011.
2. NYSBA Ethics Committee, Opinion #680; 1/10/1996 (57-95)
3. Virginia Ethics Opinion 1818; 9/30/05
4. Nemcheck, LR. “Records Retention in the Private Legal Environment: Annotated
Bibliography and Program Implementation Tools.” 2001.
5. “Records and Information Management and Retention.” Association of Corporate
Counsel Nonprofit Organizations Committee, W. Hamel and V. Danta. March 13,
2012.
6. ABA/BNA Lawyers’ Manual on Professional Conduct.

32. Company Background
MCS Management Services is a leading provider of on-site business support services, including
mail center operations, shipping and receiving, records management, document and print center
management, in-house litigation support, managed print services and related professional services.
Over 30 Years of Business Support Experience
Women-Owned Business Enterprise (WBENC)
96% Client Retention Rate since 1993
Senior management team of experts has an average tenure of over 15 years