Published on 3/8/10
A self-described "confused solo running out of room" recently contacted me about a problem that was overwhelming her practice. She had been on her own for just three years but already had accumulated more than 20 bankers boxes of case files.
Ideally, she wanted to scan everything but important originals like contracts, keep the scanned electronic files in multiple locations for security, and then shred everything else, which she estimated would leave her with just two bankers boxes. It seemed like the perfect solution, but she was uncertain whether this process was acceptable or allowed under ethics rules.
My advice was simple: Go for it! The American Bar Association's Rule of Professional Conduct 1.15 requires that client property and files be "appropriately safeguarded."
The rule stipulates no minimum time concerning how long the safeguarding must be done. Failure to provide for the security of these files is a failure in the overall duty to act competently in the best interests of a client. However, there are all kinds of ways to approach this duty, including this lawyer's strategy.
The best approach, of course, is to return valuable documents and other property to the client. That can include such things as original notes or securities, as well as original wills and settlement agreements.
Consider a provision in your engagement agreement that allows for return of the valuable documents and property to a last known address at the conclusion of a matter (for example, once the will is probated in estate planning matters) or by a date certain (for example, by July 1), whichever occurs first.
An alternative is a formal letter to clients directing them to pick up their files within a stated time, say 30 days.
Contacting clients about their files is a great marketing opportunity. It allows you to update your contact list, send letters to former clients offering them the option of picking up their file or having it shredded, and a chance to mention, "Oh by the way, if we can help you in your current challenges, call us."
It's often surprising how many calls will come in, proving a new variation on the old adage: "Out of mind, out of sight." When you get back into clients' sights with such a note, they may just remember the things they intended to do with a lawyer and then call you, their latest legal contact.
If you go the paper shredding/electronic file storage route, note that Massachusetts Rules of Professional Conduct Rule 1.15 (safekeeping property), subsection (f), states: "Records shall be preserved for a period of six years after termination of the representation and after distribution of the property. Records may be maintained by computer â€¦ or they may be prepared manually."
After the storage time has lapsed, destroy the paper files by shredding the hard copies through the services of company that assures security in the shredding process. Be sure to keep copies of the electronic files in several locations as an added layer of security. You'll not only have more space in your office, you'll now have a file database that is easily searchable, saving both time and money. So long as you comply with jurisdictional rules, you have nothing to lose but your clutter.