Document management is one of the most critical parts of a legal practice’s operations. From a practical standpoint, establishing a system enables counselors and staff to locate client files and court documents quickly. Legally, it reduces the risk of losing or damaging records that can result in liability problems for the firm, especially when a loss negatively affects a case. Creating and following record management policies and procedures regarding the organization, retention and destruction of physical and electronic files reduces a firm’s liability and improves its short- and long-term productivity.
The American Bar Association’s Model Rules of Professional Conduct requires firms to safeguard and keep records of client property. When a lawyer no longer represents a client, the individual must surrender the property and documents to which the client is entitled. Refer to your jurisdiction’s specific ethical rules regarding the types of property that a practice must surrender and the length of time it must retain other documents.
When establishing record management-related policies and procedures, be aware of the federal and state laws regarding the destruction or loss of client property, particularly as they relate to the discovery or spoliation of evidence. Some practices choose to store inactive files offsite, implementing a “hold” system for records that should not be destroyed even when the retention schedule permits it.
Considerations for Electronic Records
Email communications are a form of electronic record. Just as a practice secures physical documents, an electronic records system and computer network must have tight security protocols to prevent malicious intrusions, viruses and user-errors. To prevent privacy breeches and document losses, establish rules regarding what client-related documents counselors and staff can access on personal devices, such as cell phones and tablets.
When deleting an electronic document from a hard drive, bear in mind that this act is not the same as destroying a file, as the metadata still remains until it’s “scrubbed.” While an electronic document system offers some conveniences, it’s wise to remember that some types of electronic documents (e.g., certain type of contracts) do not take the place of physical documents.
Some of the rules that apply to physical documents apply to electronic records in regards to their disclosure, preservation and destruction. When creating document management best practices, it is wise to treat paper and electronic records consistently to avoid sanctions for noncompliance.
- Know the location of all physical and electronic documents by keeping an updated inventory. Group the records into categories, or record classes, that follow the practice’s retention schedule. To make locating records simpler, use consistent nomenclature.
- Train everyone in the practice about its email management policies. Communicate that email content belongs to the firm and there is no expectation of privacy when using the firm’s email. Define what type of email content is appropriate, as well as the limits of personal email usage.
- Notify clients about the destruction dates of retained files.
- When deleting electronic files using special software or when destroying physical documents, ensure the client’s right to privacy when using third parties to perform the tasks.
- Establish disaster preparedness and recovery procedures, as well as a business continuity plan that includes how to protect, salvage and restore all documents when the unexpected occurs.
- Take steps to identify and protect the firm’s most vital records—those that are necessary to for the firm’s continued operation after a crisis or disaster.
Proper document management is part of what keeps a legal firm running like a well-oiled machine. When the unexpected happens, Polygon is here to help you clean, dry and salvage your legal documents using the most advanced techniques in the industry. Depending on the documents in question, we can restore documents on site or at a high-security facility. By participating in the Code Blue preparedness program, Polygon will work with your firm to create a document preparedness protocol in advance and give it 24/7 priority access to our business recovery and continuity services. Contact Polygon today to learn more and to schedule a consultation.
[Photo from Chris Potter via CC License 2.0]