If there is one thing every lawyer has plenty of, it’s paper: motions, pleadings, contracts, invoices, letters and other documents, either gathering dust in banker’s boxes or filling up file cabinets.
The problem can be especially acute for solos, since solo practitioners typically have finite space for files — both in their offices and on their computers.
The obvious solution is to get rid of some of those documents. But which ones, and when?
Apart from the general rules regarding the safekeeping of client property, neither the American nor the Minnesota State Bar Association has rules regarding retention of records for attorneys. But such entities as Minnesota Lawyers Mutual Insurance do offer guidelines, such as keeping copies of all files for at least 10 years to protect against potential malpractice claims.
Minneapolis attorney and ethics consultant Eric Cooperstein, though, says that in most cases, it’s not necessary to hang on to records for 10 years. He says the most popular method is to hang on to records for the length of the statute of limitations that applies to the case, plus one year. Exceptions should be made for such documents as wills, estate plans and prenuptial agreements. And files related to trust funds should be kept for the life of the fund.
“Those are areas that could come up in the future,” Cooperstein said. “Although if the client has been given the original document, it’s more a matter of a lawyer wanting to protect him or herself if it turns out later that there’s been a mistake.”
The most likely negative consequence of destroying records too soon is a potential malpractice claim. The Minnesota Rules of Professional Conduct say that once a case ends, an attorney cannot destroy a file without notifying the client and giving them a chance to retrieve it — an issue covered under preserving a client’s property.
But a lawyer who has given the client the opportunity to get their files back and has informed the client what the lawyer intends to do with the file — how long it will be maintained, when it will be destroyed — is not likely to have an ethical problem if the client suddenly changes his mind years later and wants a copy of the file that was offered previously, according to Cooperstein.
“You could have a malpractice issue because the client could allege you did something wrong,” he said. “Then you don’t have any way of defending yourself. If you had your notes, you could say you talked to the client about it and the client directed you to do something different.”
Beyond those guidelines, solo attorneys have varying methods and philosophies about whether and how to keep their records. Rochester attorney Will Mahler, with the help of a longtime paralegal in his office, electronically scans every document, but he also keeps hard copies of correspondence, expenses, bills and retainer agreements. Mahler uses a pole barn to accommodate all the paper.
“Before I scanned things I would have depositions of experts, and I would keep those to refer to,” said Mahler. “As the years go by, those become less relevant. It isn’t very often that I need to go back and check something, but it happens on occasion.”
Others are in the process of going paperless but are finding the process challenging.
Edina attorney Pamela Rochlin said her office is getting into the habit of scanning all its documents, but that they still use an offsite records storage site for all their closed files.
“We are not as technologically advanced as we’d like to be, so most of our records are still paper,” said Rochlin. “We are scanning more and more documents as we move forward, and we keep all our electronic files and have good backup.”
St. Paul attorney Mark K. Thompson is also in the process of going paperless with his practice’s records. He runs a weekly double backup on an external hard drive and is exploring cloud storage as an alternate backup solution.
“I err on the side of caution,” Thompson said. “I just hang on to everything. Once I accumulate five or 10 years’ worth, I could see starting to weed out the essential from the nonessential.”
Purge, baby, purge
Cooperstein said some firms just give its files back to its clients at the end of each matter and don’t maintain their own copy of the file at all, partly to avoid subpoena if a client is sued. But that’s not a good idea for most lawyers, he said.
“What a lawyer should do is notify the client what his file retention policy is so the client has notice when you start representation, then, ideally, at the end of representation notify them of your policy again,” Cooperstein said. “Let them know that after X years, the file will be destroyed, perhaps without any further notice. You don’t want to have to send out a notice every time you’re about to destroy a file. Get permission when you’re still in contact with the client, not after you’ve lost contact.”
Another good reason to occasionally purge records is to save headaches for whoever inherits your files.
That’s especially true for solos and small firms, said Cooperstein.
“They won’t know what to do with your attic or garage full of files,” he said. “They might think they’re obligated to contact all those clients. It can become an expensive burden.”
Managing closed files is an important part of any practice, he added. “But it’s a nonpaying part, which is why notifying the client up-front of your policies is so important.”
Contact Dan Heilman at email@example.com.