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Many subsequent writings on file ownership model their recommendations on those of Slovut. Retention of Client Files General 6. Andrews, Helen, et al. Prairie Village, Kan. If you had time to read only one publication before producing a plan of attack for your law firm to use in developing a records retention program, this book would be the one. It is the starting point for all legal records retention research.
Written by members of the Records Retention Subcommittee of ARMA s Legal Services Industry Action Committee, it incorporates survey information, plus a review of all of the important literature and ethics opinions available at the time of its publication. The cutoff date for inclusion of ethics opinions varies by state, with the earliest sometime during and the latest during the first quarter of In addition, the book provides practical guidance on 1 how to develop a retention policy in a law firm, 2 what elements to include in such a policy, and 3 what to expect when attempting to implement the policy.
Particularly useful are three charts: a N. This brief newsletter treatment is aimed primarily at administrators of small law firms that do not employ professional records management staff. Among other noteworthy features, it includes a sample retention schedule for practice area file types, including contract actions, bankruptcy claims and filings, marital dissolution files, probate and estate files, plaintiff and defendant tort claim actions, real estate transactions, and lease documents.
Almost ten years later, Dimitriou, a San Francisco solo practitioner, was still writing about client file retention. The second article restates much of the content of the first in a slightly expanded form and without the file type retention chart. The general prescriptions contained in these two articles are probably too radical to satisfy the comfort level of most large, general practice law firms. For example, one of the author s premises is that the lawyer s client file both in its active and inactive states should be weeded of records that 1 are duplicated in public records e.
However, this approach to client file retention may work for small firms and solo practitioners, subject to applicable bar rules and ethics opinions of individual states. The author worked in firms that were not automated and had no records management professional handling basic operations and following best practices.
The information related to automating the firm is now largely out of date. Georgiadis, Paul D. This detailed newsletter article analyzes selected ethics rules, ethics opinions, and ABA professional responsibility guidance, and is particularly useful for the beginner seeking general guidance because it is written in clear, easily understandable language no legalese. Both of these articles present one of Skupsky s most controversial pronouncements: Do not permit attorneys to review files before destruction. This approach may work in the corporate environment, but it is rarely implemented in law firms.
Entry no. This brief trade newspaper treatment focuses on the document management and automated records management system aspects of implementing a records retention program. Smith, Gary J. Business Litigation 1 December : 8. This article addresses the critical but almost entirely neglected issue of returning originals and copies of clients corporate records to clients. Most law firms have no mechanism for coordinating the implementation of their retention policies with those of their corporate clients.
As a result, in a worse case scenario, a firm may be compelled to produce copies of damaging documents contained in its files that its client has legally destroyed years before, pursuant to its records retention policy. This article discusses the categories of law firm documents that are protected by the attorney-client privilege and the work-product doctrine. Those document types not so protected cannot be shielded from discovery.
The authors advise legal records managers to manage their clients corporate documents in accordance with the clients retention policies as well as those of the law firm. Law Office Hornbook, at last visited Nov. In some cases, annotations are provided for each state s sources as a group, as opposed to each individual listing. Only sixteen states are represented, but many of these sources include citations to other states cases, ethics opinions, and rules of professional conduct.
Therefore, those conducting research in the area of legal records retention are advised to review all of the sources listed. Dodge, David D. The articles highlight Arizona ethics opinions that address records retention and applicable rules of the Arizona Supreme Court. In addition, the more recent of the two articles cites and discusses relevant sources from Pennsylvania and Ohio. Phillips, Pamela, and Merri A. Baldwin, Client Files: Handle with Care, California Lawyer 18 May : [California] California is well represented in the literature of legal records retention; the three articles listed include discussions of all of the important issues.
Karpman s article contains no significant information. Fishman s article follows the format and content of the San Francisco Bar s Ethics Committee Opinion , 17 including eight hypotheticals. In addition, Fishman provides a section entitled What Can t Be Given to the Client, which includes conflict of interest information, certain police reports, and documents subject to confidentiality stipulations and protective orders in this category.
The final article, by Phillips and Baldwin, is the most substantial. It includes a sample fee agreement provision on file retention and recommends adopting a document retention policy. Of great interest in this article is a discussion of a failed proposal by the Bar Association of San Francisco to the California State Bar Conference of Delegates in which the bar association proposed a resolution to adopt a new state rule of professional conduct addressing client file retention. Although the proposal was not adopted, the dele- See infra The authors of entry no. Although written for Colorado practitioners, the article also analyzes opinions from several other states.
Truhlar, Doris B. The responses received represented the records retention practices of approximately 1, individual lawyers. The survey was not scientific or even systematic; it was designed to uncover current practices. The article reproduces the questionnaire in an appendix, discusses the responses to each question, presents some of the findings in graph form, and includes both a sample fee agreement provision and a sample Authorization and Release document, which deals with storage and alternate disposition of client files.
Wirth, Richard J. Wirth provides recommendations for handling attorney work product, drafts, and executed documents prior to storage or destruction.
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In addition, he raises but does not discuss some interesting issues that are not treated elsewhere, notably: 1 how should inactive file transfers to outside attorneys be handled? See infra ABA Comm. Characteristically, this opinion does not provide specific retention periods; rather, it adopts a general approach that is geared primarily toward protecting the interests of the client. Florida Bar Journal 68 January : [Florida] This is an excellent bar journal treatment which, in addition to all of the standard elements characterizing such articles, provides a model file retention policy that includes guidelines for a culling files, b carrying out file destruction, and c policy implementation.
In addition, the article includes a unique element: a list of actions that constitute completion of the matter in eight different types of matters. Illinois Bar Journal 83 : [Illinois] This article typifies the short pieces that frequently appear in state bar journals as ethics or malpractice-related features, although this one has a bit more meat to it than most in that it recommends specific retention periods for certain types of files, discusses notice requirements, and includes a discussion of file closing procedures.
This author recommends that, in general, attorneys should retain closed files for at least 10 years, with exceptions for estate planning files, matters involving minors and disabled individuals, certain types of contract matters, and others. Kerr, David J. This article examines the requirements of Formal Opinion R-5 and provides guidance to Michigan practitioners who must comply with them, as well as a suggested law firm records retention policy that satisfies all of these requirements.
Frans, Myron L. It thoroughly analyzes applicable ethics rules and opinions, court decisions, ABA pronouncements, and the Restatement of Law Governing Lawyers; it also includes sample retainer agreement language and extensive footnotes.
Martin, Robert W. Montana Lawyer 21 September : 5 7. Bar Ass n Ethics Comm. R-5 He advises lawyers to keep inactive client files indefinitely, as long as space or other practical limitations such as cost are not problems. On November 29, , the committee issued a public call for comments on the issue, with responses due by December 28, This article reports on the background leading to the committee s action, including a discussion of existing New Jersey authority.
It discusses the use of offsite storage facilities and electronic media by both solo practitioners and larger law firms to help ease the space problems caused by growing inactive file inventories. As of this writing, the Advisory Committee has not yet issued its opinion. Baxter, Kathleen R.
Stated another way, she suggests that a lawyer who fulfills his ethical obligations to a client whose matter has closed by delivering to the client all documents and file materials that belong to the client has an additional responsibility to advise the client regarding the need to retain materials pursuant to tax or other federal or local regulations.
In addition, Hunker, vice president of claims with the Ohio Bar Liability Insurance Company, advises on best practices for the handling of closed files. Martin reiterates this position in a later short piece that is not included in this bibliography because it is not widely available. Robert W.
Martin, Jr. The format of such columns is standard and appears frequently in legal newspapers: a hypothetical question is posed on an ethics-related question, and the question is answered in the column. The question in the article is: I am moving my office to a much smaller location and I want to destroy old files.
How long must I maintain files and is there any preferred method of disposal? Two years later, the question focused on file copying costs: The client contends since he paid me that I have to give him the file and, if I want a copy, then the expense is on me. Typically, answers include advice from ABA model rules, other states ethics opinions, and court cases. Embick, Barbara, et al. Columbia, S. It includes summaries of relevant ethics opinions for South Carolina through Opinion and for North Carolina through Opinion , as well as a sample retention policy, a retention schedule broken down by areas of law, and a bibliography.
Selinger, Jerry R. In addition, it analyzes court cases to a greater extent than many other articles and ethics opinions. Regarding the issue of compliance with ethical retention obligations, the article compares and contrasts ABA Informal Ethics Opinion and the Restatement of Law Governing Lawyers still in draft form at the time of the article s publication. This article is unique in that the authors call for the state legislature, the state bar, or both to eliminate the uncertainty associated with these issues by amending ethics rules and enacting statutes to define retention periods and formalize policy implementation proce- State Bar of Tex.
ABA Informal Op. Furthermore, they suggest that a catchall statute specifying a three-year retention period for those records that are not otherwise required by law or regulation to be maintained for a specific period 29 could be applied to legal client files by analogy, though subject to qualifications. If not possible, Inge s position is that the primary purpose of a document retention policy is to protect confidential client information.
Boone, Jeffrey S. It is both easy to understand and focused. The inclusion of a retention schedule listing common record types used in patent matters both litigation and prosecution adds greatly to its value. Specific retention periods are suggested for the following record types, among others: patent assignment agreements, correspondence agreement and general , invention disclosures, interference files, patent infringement litigation files, patentability opinions, validity and infringement opinions, patent application files, original patents, patent search results, and unsolicited ideas.
Furthermore, the author considers the different retention requirements of corporate counsel versus private patent attorneys and provides different retention periods for each environment. Gomola, Gary R. This article is a laundry list of common record types created in law firms and their recommended minimum retention periods, grouped by administrative area.
The list includes, among others, records in the areas of general accounting, tax, partnership and corporate governance, payroll, human resources, and general contract. The authorities from which the retention periods derive are not included. Another laundry list, this one is organized by minimum recommended retention period, ranging from thirty days to permanent. No statutory or regulatory authorities are included. Code Ann b West He characterizes old records as junk and very emphatically advises firms to destroy business records when retention reaches the end of the minimum periods required by law.
He provides the suggested minimums for various accounting, tax, employment, corporate, and contract records. It includes the standard laundry list that is common in these types of articles. For firms that are ready to invest in imaging technology, there is an equipment review and a brief directory of imaging service providers. Goodman, Susan K. As Goodman notes, regardless of the structure, size, and function of the department and of the nature of the business enterprise, there are usually commonalities related to the types of records maintained and the issues encountered related to them.
Typically, administrative records retention in law firms is a neglected area. If considered at all, the departments generally included and scheduled are human resources and accounting see entry no. This article focuses specifically on the development of retention schedules for records created by IS departments. Although Goodman was not writing for the legal environment, the information contained in the article is applicable to law firms. She describes in depth the major records series typically found in information systems departments and their typical use; information about various categories of electronic records that IS maintains for other administrative departments of the organization; and the issue of centralization or decentralization of technology use and control.
She does not provide suggested retention periods for the records series that are discussed, but she does supply the necessary foundation from which to develop an effective schedule for IS records that can be further annotated with retention periods set by the law firm. Rosenberg, Richard S.
This very short article provides exactly what an administrative records retention schedule needs. Each record series discussed includes a retention period and its governing authority. The authors discuss federal and California statutes that prescribe specific retention periods for records generated by various human resources activities.
An excellent example of a departmental retention schedule that law firms can adopt with some measure of confidence. Because the primary purpose of records management in the corporate environment is to prevent or reduce exposure to liability in the event of litigation, many of the items deal with evidentiary issues, including discovery, spoliation, and improper document destruction.
Blostein, Stewart, Record and Document Retention, Legal Administrator Update 3 November : 15, This laundry list-type newsletter article is similar in content to the articles listed earlier under general administrative records retention entry nos. Although appearing in a publication for legal administrators, its focus is on business records created and maintained by individuals and small business owners, not lawyers and law firms.
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Campbell, D. Jeffrey, and Patricia S. Jeffrey, and Jonathan R. Both articles provide excellent advice to outside corporate counsel. The first focuses on the doctrine of spoliation of evidence, adverse inference arising from improper evidence destruction, and spoliation as a tort. The second deals exclusively with developing and implementing a legally defensible records retention program in the corporate environment. New York Law Journal May 10, : 1. This interesting article examines the two categories of client documents that may be housed and maintained by a client s lawyer privileged and nonprivileged and attempts to dispel any misconceptions that corporate clients may have regarding the relative protection from discovery such documents enjoy.
The article ends by describing an incident involving a subpoena, which contained a no notification to customer statement, issued to an off-site records storage company for the purpose of examining law firm documents stored there. Corporate Counsel s Guide to Records Retention. Chesterland, Ohio: Business Laws, Inc. A monthly newsletter included as part of the subscription, entitled Corporate Counsel s Records Retention Report, focuses on one specific subject area each month e. The June issue, entitled Bibliography of Records Retention Resources, is a seven-page annotated list of books, articles, and Web sites organized along the same lines as the subjects covered in the three-volume Guide.
The newsletter is available for separate purchase. Several issues each year focus on records retention and reporting requirements in specific areas. Recent articles have covered retention of intellectual property 30 and environmental records. Document-Retention Policies: Evolving Beasts; Technology Is Forcing Many Companies to Re-Evaluate Policies, Corporate Legal Times April : 1, Lengthy roundtable discussion focuses on how effective document-retention policies can enable a company to shield itself from the powerful weapon of discovery.
A panel of four corporate counsel from large corporations discusses electronic evidence discovery, spoliation, , and other technology issues, as well as how these issues influence corporate document retention policies. Excellent coverage of the subject. Fedders, John M. Guttenplan, Document Retention and Destruction: Practical, Legal and Ethical Considerations, Notre Dame Lawyer 56 October : Still frequently cited after twenty years, this excellent law review treatment of the subject is exhaustively researched and heavily footnoted.
Section three on document retention-destruction programs in the corporate setting is particularly valuable. Records Retention, Corporate Counsel s Quarterly 13 January : This article isolates and discusses four separate topics: a handling records in a disaster situation, b privacy aspects of personnel records retention, c legal aspects of document destruction, and d ethical aspects of records retention.
It provides many references to relevant case law and statutory authorities. Turian, Samantha R. It includes a sample destruction authorization memorandum and a sample retention schedule memorandum. Electronic Records Retention Cotton, Christopher V. The author posits that document retention programs for electronic data should be held to the same reasonableness standards as programs covering traditional, paper-based records.
However, in applying this standard, it is apparent that retention periods for electronically stored data should be longer than reasonable periods for paper records, because the administrative expense to the corporation to store and manage the data is greatly decreased. This theory contradicts best practices records management, which contends that retention periods must be based on record content, not format or cost. Feldman, Joan E. Her advice on what to expect upon receipt of a request to produce electronic evidence and how to manage electronic files to minimize discovery risk is both practical and understandable, even to nontechnical legal personnel.
Jessen, John H. Jessen is recognized within the records management profession as an authority on electronic records management. This short newsletter article touches on some practical areas of concern, including maintaining client confidentiality, old records hidden on hard drives, encryption password management, record contamination, and use of electronic records management as an aggressive litigation tactic. Anyone doing research on legal records retention or charged with keeping up-to-date on new cases, bar rules, and ethics opinions in this area must regularly review this title.
However, when possible, it is preferable to read the full text of ethics opinions in addition to reviewing the summaries provided by the Manual. A Report on Issues and Client Records provide ethics opinions issued by an additional nineteen states, bringing the total number of United States jurisdictions whose bar associations provide some guidance in the area of records retention and destruction to forty-three not including opinions issued by county and city bars.
Note, however, that the issues treated by each state s bar differ considerably from state to state. Whereas one opinion may recommend a specific retention period before which clients files should not be destroyed, another might use vague language such as client documents must be retained as long as may be necessary to protect the interests of the client. In addition, some states address unique issues that other states have not yet confronted.
For this reason, a researcher reviewing All direct quotations in the ethics opinions section annotations are from the summaries in the Manual unless otherwise indicated. They are interpretations of ethics rules offered as guidelines to lawyers for following the rules. In actual practice, however, these opinions are frequently cited by the courts, and bar associations place heavy reliance on them in disciplinary actions and in formulating new opinions The opinions are listed alphabetically by state and in date order earliest to latest within state.
Each opinion has been assigned one or more of twentyeight index terms that categorize the subject matter s of the opinion, and a subject index is included to provide increased accessibility. The opinion suggests that the definition of reasonable time depends on the nature of the documents and the attendant circumstances, and that the length of time a file is stored is more a matter of the lawyer or firm s policy than any regulatory requirement.