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
September 2014

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. 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 records 1

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. •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. •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.
Best Policy for Disposal of Closed Records

29. •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.
Review: Strategies for RIM

30. •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.
Conclusion

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 35 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 20 years