For the record: consider the requirements of file security

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Published on 10/24/05

Hurricane Katrina brought home the importance of file management and record security for every law firm.

Make it a point to back-up all computer data and store important records and documents off-site. Everything you save on the computer should be backed-up on a regular basis. This also applies to crucial paper records such as master files, time and billing records, court dates and appointments, wills, powers of attorney and corporate records.

The frequency of computer back-ups depends on how much work you produce between back-ups and how much you can afford to lose. Store all important data and paper back-ups at a secure and specially designed location.

Security concerns involve the broader issue of efficient record management. Lawyers know they have to retain, indefinitely, the valuable property that belongs to clients where they are unable to return such property to the client.

Valuable client property includes documents such as original notes or securities. This also includes original wills and settlement agreements. The best approach, of course, is to return such property and not pay the storage costs.

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 or by a date certain (e.g., in estate planning matters), whichever first occurs. An alternative is a formal letter to clients directing them to pick up their files within a stated time, say 30 days.

Although your client notification letter may state that clients must pick up their files within 30 days, you should keep these files for two years - unless, of course, the rules of your jurisdiction require a longer storage period.

The rules and specific time periods for storing or destroying client files vary by jurisdiction. Some states, for example, require a lawyer to securely store a client's file for 10 years after completion or termination of the representation, absent other arrangements between the lawyer and client.

Depending on your state's statutes, after the storage time has lapsed, destroy the files in accordance with your file retention policy.

Another record category is notes and related items used by the attorney to represent the client that are not original documents. Bar counsel in Massachusetts has succinctly stated that "a lawyer may dispose of those parts of the closed file which do not constitute 'records of the receipt, maintenance, and disposition of [clients'] funds and other property' and are likely to have no continuing value or future use to protect the client's interests. Examples include copies of pleadings, correspondence, and other work papers."

If you prefer not to destroy everything outright, you may want to image all old files and then destroy everything but original documents. Some photocopy machines allow documents to be scanned without charge if paper is not used to print the image. The scanned documents are then stored on disks that are electronically searchable.

The result: storage costs are lower, documents can be found faster and security is enhanced.

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