When I first began practicing more than 25 years ago, it seemed the profession I joined was already drowning in a sea of paper. What we couldn’t keep on-site – in, on or under our desks; in boxes piled in the corner; in file cabinets; or on shelves in dimly-lit windowless rooms – we sent off to mysterious off-site storage locations, capable of being called back on two-days’ notice. Even one-day for an extra fee! Most of the documents we vanquished to long¬term storage have never, ever seen the light of day again.
The January 2018 acquisition of document scanning giant IO Data Centers by Iron Mountain only serves to underscore that the struggle to manage the information sent, received and generated in the practice of law has evolved rapidly and continues to do so. Lawyers are still drowning in the same information, but in digital form. And the volume is larger than ever before as we increasingly communicate by email and text, and the fruits of our labors sequentially pile up in in-boxes, sent items, outlook folders, sometimes-cumbersome file management systems, and external media, just to name a few common storage locations.
The challenges we face in managing storing and retrieving this information are complicated by the surprising fact that the amount of paper we use has not significantly decreased – lawyers so often still print documents to paper at an alarming rate, with surveys showing that an individual attorney on average still generates between 20,000 and 100,000 pages of paper documents per year!
There are many angles from which one might examine the issues surrounding data and file management in the law firm environment. Law firms are obviously concerned about productivity; it sometimes takes employees hours to find a document. Law firms are obviously concerned about costs; it is expensive to store paper files, and it can be labor intensive both to reduce materials to electronic format, and in turn, to index and organize electronic documents to facilitate future retrieval. In this article, however, I focus on ethics; or put another way: the lawyer’s basic professional responsibility to maintain a properly-organized client file.
I have framed my observations in the form of ten questions that I believe any law firm, large or small, could benefit from asking itself. Also, a standard caveat: the laws and rules governing lawyers vary (sometimes wildly) from jurisdiction to jurisdiction, and as such, this article can provide only generalizations. The reader is advised to consult all applicable law and rules, as well as knowledgeable counsel, before acting on any of the principles discussed in this article.
The client is generally entitled to all or part of the lawyer’s file at any time upon request. As a concept, this makes sense. After all, lawyering is a service business, and so everything for which a lawyer has billed (and the client has paid) ought to belong to the client. Yet, it is not always that simple. The duties of safekeeping of client property and to turn over papers and property to a client upon request are also embodied in the Model Rules. See Model Rules of Professional Conduct 1.15 and 1.16(d).
In a minority of states, the client is only entitled to final work-product, not drafts, notes or internal communications. In a majority of states, however, like my home jurisdiction of the District of Columbia, the client is entitled to the “entire file.” In such jurisdictions, with some exceptions, if the lawyer decides to save particular material as part of the file, the client is entitled to receive it upon request. Exceptions typically include materials that are purely related to the management of the lawyer’s business, such as intake documents, conflicts checks, and billing records. A lawyer may sometimes also withhold portions of the file that would violate a duty of disclosure to another person, would endanger the health, safety or welfare of the client or others, or in narrow circumstances where an attorney might exercise a retaining lien.
To file or not to file, that is the question.
An understanding of the kinds of materials to which the client is entitled will naturally influence a lawyer’s decision about what to file or not to file. For example, in a “work product” jurisdiction the client is entitled to communications with the client, original documents provided by the client to the lawyer and anything the lawyer obtained or prepared in furtherance of the representation. Thus, it might be an easy decision to routinely eliminate all drafts anytime a document is finalized, or discard notes or internal law firm communications. After all, in such a jurisdiction the client is not even entitled to them – so why keep them? But, that is not a decision to be made hastily. As a defense lawyer, I have learned that the story told by an iterative drafting process, or a contemporaneous email to a colleague concerning a client instruction, can be invaluable in defending a claim. On balance, a strong argument can be made that such materials should be kept as part of the file, even in jurisdictions where the client is not entitled to them.
It is my impression that lawyers over-file, because it is easier to dump a pile of paper, or a grouping of related emails, into the file, than it is to pore through the material and make document-by-document retention decisions. Once the material piles up, the chances that it will be winnowed down later decrease. Technological advances, however, are helping attorneys make these decisions on the fly.
Even so, if one lacks a philosophy for retention, then procedures or technology will not ease the attorney’s burden. It is just human nature to just keep everything out of an abundance of caution, while some might have the urge to throw it all away (which of course is not permitted). Surely certain things – original instruments, wills, client documents, external, correspondence, final work product, and the like – will be retained by all lawyers. But what about drafts, notes, annotated documents, internal email, calendars, meeting requests, research, duplicates or document compilations?
Whether an attorney decides, in his or her discretion, to keep such material as part of the file will depend in large part on what kind of practice they have, how they work, and the even the expectations of the client (as best the attorney can divine them).
Attorneys should make the process of daily filing as habitual as time entry and returning client phone calls.
Whatever the philosophy, the passage of time does not make it any easier to implement when it comes to file management. What might take a few minutes a day in real time will take many hours if material is left to pile up.
Engaging in this process in real time simply makes it easier – the importance of the document or communication is top-of-mind, as is the specific client/matter to which it relates. Figuring all this out weeks or months later is slower and requires more effort. Attorneys should make the process of daily filing as habitual as time entry and returning client phone calls. In addition to automated applications, attorneys also should not overlook the important role that assistants can play in managing their email in-box and sent items, even in real time.
Clients are becoming more and more sophisticated about cyber security and compliance with the various regulatory privacy protocols. As a result, they are increasingly issuing outside counsel guidelines that dictate enhanced file storage and communications standards. For example, firms engaged in health care practices that will come into possession of electronic Protected Health Information, will need procedures and a Business Associate Agreement under HIPAA. Similarly, firms working with financial institutions will be prohibited from disclosing the contents of certain regulatory filings, and may need extra firewalls or encryption to safeguard confidential information. Certain states have implemented laws protecting personal information that apply equally to law firms. More and more, the general confidentiality requirements of Model Rule 1.6 are not enough, and clients are in the driver’s seat when it comes to negotiations over what heightened security measures are sufficient. Are we prepared to meet these challenges?
There are many instances in which the contents of a law firm’s files may be subject to a document hold. The law firm may receive a subpoena, or a client, third party, or even a credible media report may inform the firm of a circumstance that gives rise to a “reasonable anticipation of litigation,” the standard that triggers a need for an immediate document hold. The litigators among us – myself included – are accustomed to advising clients on what reasonable efforts must be taken to preserve documents and information in such a circumstance. Law firms are just like any other business in that regard, and should have robust procedures in place with respect to document holds. Because a wide array of personnel in the firm or office will have a role in designing or implementing the hold, it is always a good idea to train on the duties and requirements, so that any kinks in the process can be identified and ironed out in advance.
Holding the documents is one thing, collecting and producing them is another. If real-time filing is not the norm, it may be necessary to assemble the file before it can be produced to the subpoenaing party or delivered to the client or new counsel (another reason to keep up with that particular piece of housekeeping). Who will contact the client for instructions in the case of a subpoena or third-party request? If the client wishes to contest the subpoena who will be handling the objections, and who will be paying for that opposition? Who will review the documents prior to production or transfer to ensure there are no misfiled documents, or internal law firm materials that should be removed, and to designate documents to be withheld under a claim of attorney-client privilege or the work product doctrine? Our clients will more often than not hire outside counsel to assist in a subpoena response. In many situations it may be advisable for law firms to do the same.
A trend in legal ethics is emerging that holds lawyers responsible for keeping up to date with respect to the latest technological advances. In 2011, the ABA Commission on Ethics 20/20 proposed expanding the scope of a lawyer’s duty of competence to include understanding the benefits and risks associated with the use of technology. Comment 8 to Model Rule 1.1 now provides: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” (emphasis added). This necessarily includes the tools that we use for document and file management.
There are certain instances when it is permissible for an attorney to retain a client file in response to a request for transfer of the file or copies of its contents from a client who has not paid its bill. But even in states where the law governing attorneys’ retaining liens is relatively permissive, those instances are few and far between, and are often tempered by overriding duties to prevent prejudice to the client. For example, in the District of Columbia, a retaining lien is permitted, but only over work product for which the client has not paid, and then only if the retention does not cause undue harm to the client (such as preventing the client from continuing a case with its new counsel). As such, it is important that billing and collection staff are trained not to make retaining lien threats or communicate with clients in ways that suggest that the file will be withheld, without due consideration of the applicable law and ethical rules.
Because lawyers are required to abide by their client’s wishes with respect to disposition of their files and property, it is incumbent on the lawyer to communicate with the client regarding the firm’s policies, and to solicit from the client its directions. Most firms will include their retention policies in their engagement letter, though some might choose to publish a separate document retention policy, referenced in the letter, and to which the client agrees. If the firm’s policy changes, it should consider whether to seek express client approval of the change.
I believe that “pack-ratting” is second only to “over-filing” as a cause of the growing problem firms face with file management. By “pack-ratting,” I am referring to the practice of merely storing material rather than managing it. Some might argue that as long as you are keeping information in native or scanned electronic form you are immune from “pack-ratting” because digital storage is cheap. And it is. But this only lessens the problem on a going-forward basis, it doesn’t resolve it. Even digital media still must be stored somewhere, preferably off site, and it still must be curated – just like the old paper files. It is a permissible part of practice management to engage in regular purging of old client materials, subject to certain important limitations. Files can be offered to the clients for return, or with appropriate consent, files can be destroyed. But files should never be destroyed if they are subject to a document hold or other restriction or undertaking that prevents destruction, or if they constitute important original documents, like wills or legal instruments, or contain valuable client property held by the attorney for safekeeping.
This question is not meant to have a preachy subtext, although there can be little dispute that behavior can be changed by rewarding the positive and punishing the negative. Beyond that, however, we should not forget that lawyers with managerial authority over law firms, as well as individual lawyers in positions of authority, have a duty to supervise lawyers and staff. See Model Rules 5.1 and 5.3. Having established that there are numerous professional responsibility threads that run through the document and file management issues discussed in the previous questions (which are not intended to be exhaustive), it is incumbent upon firm management to ensure that these concerns are included within the firm’s policies and procedures, and its supervisory system. That means regular training, but also a mechanism for recognizing and reacting to possible violations.
Assistants might be encouraged to report (perhaps anonymously) those attorneys or staff with less than optimal document and file management practices. The firm would then be in a position to counsel or offer additional support in order to foster improvement. Attorneys or staff who embrace such efforts might be rewarded with favorable evaluations, compensation or bonuses. Those who are resistant might be considered for more punitive consequences. A documented program and demonstrable track record of addressing concerns in this area will serve as evidence of supervision and attention to these concerns, should it become necessary to respond to a client claim or investigation by bar counsel.