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Ed Poll
  Week of November 3, 2009

Preserve, Protect and Defend Your Client Records

ABA's Rule of Professional Conduct 1.15 requires that client property and files be "appropriately safeguarded." There generally is no minimum time provided for in the rules concerning how long this safeguarding must be done. Lawyers are, generally, stuck with maintaining the clients' files unless he/she can find the clients and persuade them to retrieve their material and / or create protocols in the initial agreement that the client accepts and signs.
In California the State Bar has not expressed an opinion on how long files must be maintained, but the Los Angeles County Bar Association's Formal Opinion No. 475 holds that files should be kept for five years from resolution in civil matters, and for the life of the client in criminal matters. Failure to thus provide for the security of these files is a failure in the overall duty to act competently in the best interests of a client.
Files are not the only concern. Valuable client property includes documents such as original notes or securities, as well as original wills and settlement agreements. For paper documents, many firms rely on outside document management and storage companies to handle archiving and security of files. This often involves the use of traditional "bankers' boxes," with these items labeled and stored using a system that reflects your document management strategy. You should store on your own database the inventory system for your file boxes, and not rely on the storage vendor. Consider moving to the use of bar codes rather than coding by hand - which should be something your storage vendor can advise you on and implement.
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 at least two years thereafter-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.

Ed Poll

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Ed Poll
Ed Poll

Personal Commentary
A number of larger law firms have or are creating education programs for their new, and even some continuing, associates. Just this morning, I learned from an "alumna" of Thacher that she enjoyed her time with Big Law because this firm believed in continuing education for its associates. Also, Howrey recently announced the creation of an apprentice program for all of its new associates, rather than delaying their new hires as other large firms have done. And, in both Canada and England, there is a tradition of "articling," very similar to an apprentice program. In other professions, such as accounting, an apprenticeship is required before granting the Certificate. There are other examples.
Should we return to an apprentice system for law school graduates before licensing them as lawyers? What's your opinion? Click here to take our short survey. Our survey will end at 11:59 pm on November 10th.
Best wishes,
Ed Poll
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Ed Poll
Ed Poll

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