Paper – Philosophical Pleasures, Practical Pointers

Reprinted from:

Published 6/06

The rise of technology does not mean that paper will become obsolete any time soon. Ed Poll explains why shifting to paperless law firms will be a very long transformation.

Perhaps the most important development in “The Business of Law”® during the past 15 years is the rapid integration of technology into the daily life of the practice. Blackberries and cell phones, word processing and billing software have made once-common law office tools like dictating machines and letterpresses virtually extinct. Technology types often proclaim that paper itself will be next to go. Textbooks, law journals, written memos, hard copies of files – and the lawyers who are most comfortable with them – supposedly will all soon be made obsolete by computers and online technology.

Paper’s Pervasiveness

In fact, there remains a strong case for paper as an efficient law office information management tool. Even lawyers who know and understand computers remain highly effective with the use of books and paper records as creative tools. A number of years ago when I was managing a law office, a partner complained to me about the speed with which people wanted a response to a fax. If he didn’t get back to them within 20 minutes, they called to ask if he received the fax and, if so, why he didn’t respond. Today, with email, colleagues and clients seem to expect that response within 20 seconds.

Email, however, has not eliminated paper. In fact, offices seem to have more paper than ever before. Printouts of email messages and PDF attachments are anecdotal yet tangible evidence that paper has an attraction that will not diminish for years to come. There are both philosophical and practical reasons why this will likely continue to be so. And that means every law office must be alert to the ethical responsibilities that require them to keep paper records accessible and secure.

Philosophical and Practical Plusses

The philosophical case for paper admittedly involves intangibles, but they are real nonetheless.

People over the age of 40 may know and understand computer technology, but they remain more comfortable with the use of books and paper records as creative tools. A major reason for that is the free association that is made possible by glancing through printed pages. Facts and concepts leap off the printed page quickly and can be processed in different ways readily. Computers allow only linear searching and processing; developing a new concept is much harder when you have to follow the logic of the search program. Similarly, the devotees of RSS (Real Simple Syndication) to secure information from the Internet receive only the information they sign up to receive, and lose the creative burst from finding something unexpected in the daily newspaper.

There is also an emotional component to paper’s attraction. Touch is one of the five basic senses, and we learn by touching from the time we’re infants. That may be why as adults we retain emotionally positive feelings toward touching warm and familiar things like papers and books. Some people may enjoy touching their handheld devices, but the general emotional attachment to tactile paper will be hard to overcome.

Paper can also have practical advantages. Recycling has reduced the need for new paper from freshly cut trees by at least 25% to 40%; some paper products are now made from 100% recycled materials. Conversely, the disposal of old computers, computer monitors and related equipment has become an enormous recycling problem. Dictation to a secretary, who then creates a paper document, is often cited as an example of skill obsolescence. Yet clear, distinct dictation is required for effective use of voice recognition software, such as Dragon Naturally Speaking, and many younger practitioners find the knack of dictation hard to acquire. The point is not to argue paper’s supremacy; but it is worth suggesting that paper continues to have advantages that shouldn’t lightly be dismissed.

Physical Practices

From a practical standpoint, paper, unlike a digital file, cannot be imperceptibly altered. That’s one big reason why lawyers are required to maintain physical copies of important client documents. In most law firms, the protection and storing of paper records and electronic files are interrelated, but each involves different security and maintenance concerns. All files and data should be part of a comprehensive document management approach, which emphasizes those files and data that are most important to preserve and recover first in the event of a disaster.

For paper documents, many firms (especially larger ones) rely on outside document management and storage companies to handle archiving and security of files. This often involves the low-tech use of traditional “bankers’ boxes,” but even so these items should be labeled and stored according to some standardized system that is part of a document management strategy. Firms 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.

There are a variety of low cost technologies that allow a law office to enjoy the best of paper’s advantages while reducing the record storage burden. You can, for example, 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. And, the scanned documents are then stored on disks that are electronically searchable. The result: storage costs are lower, documents can be found faster, security is enhanced, and the paper and paperless concepts coexist.

Paper files and electronic files have different security challenges, but not mutually exclusive ones. But the real point is not whether paper or digital has the advantage for files and client records – it’s that the lawyer must take all due care to preserve them. Document and file security should be conceived and carried out in the context of a comprehensive plan that addresses every aspect of technology safeguards, disaster planning, and record security. Failure to have such a plan is a failure in the overall duty to act competently in the best interests of a client.

Practical Processes

Law firm IT departments are focused on electronic data security, but file management and record security have always been important for every law firm. 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, original wills, powers of attorney, business client records and settlement agreements. This also applies to crucial law firm paper records such as master files, time and billing records, court dates and appointments calendars.

The best approach to client documents is to return such property and not pay the storage security costs. Engagement agreements should contain a provision 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 the client notification letter may state that clients must pick up their files within 30 days, the firm should keep these files for two years—unless, of course, a longer storage period is required. 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 specific state statutes, after the storage time has lapsed, destroy the files in accordance with the firm’s document management policy.

Such a policy should recognize that every record of information in a law firm – every brief, pleading, contract and form prepared for each specific matter – has a five-stage life cycle:

  • Creation, by the individual lawyer
  • Distribution, to other lawyers working on the same matter
  • Maintenance, of the physical or electronic file that contains the work product
  • Retention, by deciding the value of each record in a file and whether it should be kept
  • Preservation in a document management system that facilitates search and retrieval.

Effective document management requires that each of these five steps be approached systematically and universally, with information organized in work files right from the start. Best practices require every firm, whether one lawyer or one thousand, to create a standard classification system for each lawyer’s work. There should be separate physical and electronic folders for correspondence, memos, forms, briefs, and emails (which have vital information but frequently are forgotten or ignored). Every folder and document gets labeled with the client matter. At the end of the matter ask the client what they want from the file (and keep records of authorization and dispersal). From information that the firm retains, identify precedent documents (including from third parties) that can be used in future matters, and make it a policy to begin all new matters by reviewing the precedent file. When integrated with shared document management systems, such as iManage and Docs Open, and shared email files in Outlook, systematic organization keeps all important precedent documents accessible.

Precedent Predominates

Some may say that the arguments in favor of paper have a strong generational element. In reality, it’s a recognition that significant paperlessness will never truly happen until the youngest members of the profession reach the age and numerical preponderance that professionals over 40 have today. Change happens slowly in the law – precedent (stare decisis, in the language of 2,000 years ago) still drives what we do. Perhaps it won’t take another 2,000 years, in the kind of timeframe envisioned by the various Star Trek generations, for paper to disappear from law offices. But, for very valid reasons, the transformation is a long way off.

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