In honor of the XXI Winter Olympiad, being currently held in Vancouver, British Columbia, which was previously most well-known as being the filming site for the X-Files television show, for seasons one through five, let’s, this week, talk records . . . client records. Psyche. That was a pretty fierce burn, you have to admit.
Then again, I kind of liked “Valentine’s Day”. Wait, Did I say that out loud?)
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Although the question might strike as impossible in 2010, it does not go unasked: “Since I’ve just retired as an attorney, What do I do now with the 30 years’ worth of client files that I am keeping in my garage?” The short is answer: get to work, because you have a long road to hoe. The snarkier answer is: you should have planned against the realization of this moment, but now it’s too late.
Most persons reading this posting are likely still in practice, or establishing a practice. That being the case, the questions become a bit warmer, and tend to a more favorable resolution than merely rolling up one’s sleeves, although that sort of sweat equity is still involved. Two of those aforementioned, warmer questions, then, present themselves, as follows: By what physical methods might you reduce those piles while you are still in practice, such that records will be appropriately disposed of, on a rolling basis, rather than confusedly dumped, all at once, at the end? (Let’s leave aside, for now, the option of “going paperless”, and transferring, to the extent possible, former paper records to electronic formatting.) What management methods adopted would lead to the approach of the same conclusion? Let’s address each matter in turn.
You know, you don’t have to keep all of your client records forever. You can dispose of them, within bounds. The Board of Bar Overseers has produced an updated article covering client file disposition, which is available here; the article, by Dan Crane, former chief bar counsel, is the BBO’s latest and last public statement on the topic. You should certainly read the article on your own, and in toto; but, the upshot, for purposes of our discussion, is as follows:
-Valuable property should be delivered to the client or stored indefinitely.
-Client fund records may be destroyed 6 years after termination of representation.
-Other client files should be retained for an “appropriate time” following termination of representation; but, no specific time frame has been established as “appropriate”. Since client files are the property of clients, clients should be provided notice and an opportunity to object to the destruction of their files. After a reasonable notice period has lapsed, client files (not items of value or client fund records) may be destroyed. Client files should be destroyed in a way that maintains client confidentiality.
This article, then, including references available within to the Massachusetts Rules of Professional Conduct, represents an excellent summary on the question of client file disposition for Massachusetts attorneys.
In addition to the BBO’s guidance, Massachusetts attorneys, both solos and small firm managers, must, like all of the Commonwealth’s other business owners, also comply with Massachusetts General Law Chapter 93I in the disposition of certain, protected client records. Protected records, and devices carrying those protected records, may only be destroyed in compliance with Chapter 93I, which requires that those records and holding devices must be destroyed in a way that renders them unreadable, or unreconstructable.
Thus, attorneys and law firms are able to dispose of client records, within certain limits. It is a matter, then, of establishing policies for the management and disposal of such records. In other words, how do you, in the short term, avoid piles of files, and how do you, in the long term, avoid a garage full of files. Fortunately, the answer is the same in both cases: create and utilize a records management policy. The creation of an appropriate document retention and destruction policy, which policy is clearly related to clients prior to engagement in representation, is the essential modern tool for managing your files.
One of the advantages of working within a LOMAP office is access to principals of other LOMAP-style offices throughout the United states and Canadian provinces. These folks are essential resource for attorneys within their own jurisdictions, as well as, in an indirect way, essential resources for attorneys without their own jurisdictions, attorneys, like you, who receive their guidance by way of what information passes through LOMAP Massachusetts, via their gracious auspices. So, Do we have resources for you for creating a records management policy? Hell yeah, we do.
I’ve aggregated a number of such resources at the following drop site, which has been populated with, among other things: guides for file retention and disposition from various jurisdictions (which instructions you should check against ethics rules within your own jurisdiction); a sample records management policy; and, a template fee agreement provision, covering retention and destruction of documents.
Now, why is that last part important? Two reasons. Reason, the first. Client files are not your own; clients files are your clients’, and you are the steward (or stewardess) of those files. So you must disclose to your clients exactly how you plan to retain, and more importantly, exactly how you plan to dispose of, their files, allowing for a reasonable period of time after notice for your clients to object to your stratagems. (More discussion on this topic is available at Dan Crane’s article, linked out above.) Reason, the second. Consider it a marketing opportunity. Wouldn’t it be nifty if, instead of storing files in your garage for eons, you could return to your clients a thumbdrive (branded for your law firm, of course; and, at the conclusion of representation plus an “appropriate time” thereafter, of course) which would include their electronic files loaded in the form of a well-constructed Acrobat PDF Package? I don’t know . . . I’d be impressed if I were your client; of course, you’d also better have some free candy for me in your office, preferably Rolos.
(This brings me to a digression, because I know what you’re asking: But, Jaaaared isn’t this much easier if you go paperless? Well, sure. But I’m not gonna write that blog post until I put together some resources for a paperless office presentation
I will make in late March. So, watch out for coverage of that issue sometime in early April, which is right before the Easter bunny looks after his shadow.)
After March 1, of course, this is all buttressed by what will become the Massachusetts legal requirement of a Written Information Security Program, or WISP, for your business, which document will touch certain aspects of record management and disposal. The WISP requirement, and the Massachusetts Data Privacy Act, generally, is one horse that we have seriously beat to death here at the LOMAP blog. Seriously. For more on our coverage of the Data Privacy Act, including our overview presentation on topic, see here.
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The other day, I was thinking about songs with prominent clapping noises; but, I couldn’t come up with enough for a “Liner Notes” segment . . . not yet anyway. However, the first song on this list did cause me to think of another topic for this edition of “Liner Notes”: my favorite songs about criminal activity! I know that I may be seriously deranged. Please bear with me, these are some cool tunes.
(If I were a better lawyer, I could write a better disclaimer about how this is not an incitement to criminal activity; nor is it meant, in any way, to glorify criminal activity. But, I’m not. And, what I’d likely say instead is that everybody should probably just lighten up.)
Song title and artist, followed by referenced and suspected criminal activity:
“Tweeter and the Monkey Man” by Traveling Wilburys (drug possession and distribution; grand theft auto; probable racketeering; assault and battery of a police office; murder; illegal gambling; destruction of property . . . unless you’re in New Jersey, where a friend of mine once saw a dead monkey on the side of the highway . . . serious)
And, to clean up this entire mess, country-styling . . .
“Beer for My Horses” by Toby Keith featuring Willie Nelson (grand theft auto; destruction of property; vigilante hangings; animal cruelty; murder; several other probable serious crimes; in passing reference, other dirty deeds)
Oh, well . . .