managing client files in your law practice

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In Print Online Ethical ConcernsManaging Client FilesLaw Practice ManagementFrank HarberHeather Flores-RicksJennifer Kohl

Managing Client FilesLaw Practice ManagementFrank HarberHeather Flores-RicksJennifer Kohl

Managing Client Files An Overview A Client Walks Into A Law Office The Client File Begins

The Physical Paper File Recommended File Structure Filing Systems (Alpha ~ Numeric ~ Color Coded)

Electronic File Storage Naming Files Backup (When ~ Where ~ How) The Paperless Office

Ethical Concerns File Retention & Purging Cloud Storage Clients Property (Keeping it & Releasing It)


Franks SectionCopy as many of these slides as you need.


Heathers SectionCopy as many of these slides as you need.


Ethical Concerns in File ManagementCloud StorageClosing FilesDestroying FilesClient PropertyReleasing Files

The Key = Have a Plan!


Cloud StorageWhat is the cloud?What are courts saying about it?

American Bar Association

Court Opinions Regarding Cloud Storage in Legal SettingsOutcome? It Looks Good!


Broadly defined, cloud computing (or "Software as a Service")refers to a category of software that's delivered over the Internet via a Web browser (like Internet Explorer) rather than installed directly onto the user's computer. The cloud offers certain advantages in terms of minimal upfront costs, flexibility and mobility, and ease of use. Because cloud computing places data--including client data--on remote servers outside of the lawyer's direct control, it has given rise to some concerns regarding its acceptability under applicable ethics rules.

**Magic Word REASONABLE CARE!!!

Know you provider; how do they store and secure data? Can you remove the data?

New Jersey Opinion: The Committee does acknowledge that electronic document storage presents some risk of unauthorized access, and emphasizes that a lawyer's obligation to maintain client confidentiality "requires that the attorney take reasonable affirmative steps to guard against the risk of inadvertent disclosure." Reasonable care in this case "does not mean that the lawyer absolutely and strictly guarantees that the information will be utterly invulnerable against all unauthorized access." When a lawyer entrusts confidential data to an outside party, however, the "touchstone" for reasonable care requires that "(1) the lawyer has entrusted such documents to an outside provider under circumstances in which there is an enforceable obligation to preserve confidentiality and security, and (2) use is made of available technology to guard against reasonably foreseeable attempts to infiltrate the data."6

Types of Client FilesProspective Client FileNo fee agreement; no agreement that you are their attorney representing themKeep letters rejecting client or matter hereActive Client FileCurrently working on; work has been done or needs to be doneNot paid in full.Inactive Client FileYou have done the work and you have been paid in full but you are keeping it open for a reasonEX: Just drafted a will for a 96 yr old or Formation of a new business entityClosed Client FileWork is complete and you have been paidNo reasonable expectation of work in the futureClient notified Destroyed Client FileIts gone! Foonberg


Closing Files The Basic RulesReturn Client Property to ClientAlways Preserve ConfidentialityProtect Yourself & Protect Your ClientNotify ~ Notify ~ Notify!


Quick Tip!When Closing A FileRename the file with the year it was closed.

This will help you determine when it is ripe for destruction.


Clients PropertySafekeepingRules of Professional Conduct (1.14)Keep separately from your propertyKeep detailed records5 years at minimum


You have to keep records of all transactions regarding clients property for a period of not less than 5 years after terminating representation.

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Clients PropertyReturning Client FilesSupreme Court of Texas, Professional Ethics Committee, Opinion No 570, May 2006Everything (including lawyers notes/ work product)Exception: Court order; Releasing them will violate a duty to a third person or risk causing serious harm to the client.


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Quick Tip!Always ask clients andpotential clients to bringCOPIES to you so that you dont have originals.

If you need originals for trial, evidence, etc ask then!


Closing The FileYou Never Represented the Client

Only notes or intake forms in fileMake sure you have no original propertySend a non-engagement letter (Sample)Destroy the file when SOL runs out on professional malpracticeSee Texas Civil Practice and Remedies Code 16.003


Malpractice: TX CPRC 16.003 malpractice claims must be brought not later than 2 years after the day the cause of action accrues. BUT Texas sais that limitations period commences upon discovery of the attorneys actions or omissionsWillis v Maverick, 760 S.W.2d 642 (Tex. 1988)

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Closing The FileYou Represented the Client andYou Have Been Paid

Exam file piece by piece remove anything that belongs to clientReturn clients property to them EX: Mortgages, original evidence, wills, leases, items bearing original signaturesInclude a cover letter with property ORIf no property to return, send a disengagement letterSample Disengagement Letter / See also Foonberg p478


Sample Disengagement letter great resource has options for various things (client termination, matter closed, etc)14

Your Closing/Disengagement LetterMake sure it includes:Case file is closed in your officeYou will do nothing furtherYou may destroy file in future without any further notice to clientClient should contact you if there is any info your client should wantSatisfaction survey (Proof of Receipt!)


Quick Tip!If you have not been paid, do not close the fileuntil you have given upall hope of being paid!

Foonberg gave an example of 14 years to receive $85,000


If you close the case and later destroy the file If it is closed you may forget to continue pursuing paymentIf it is destroyed you have no evidence that you were owed.

Foonberg example got a lien during a bankruptcy. 14 years later!!16

What ifYour client disappears before you close the file?Act as if he has not disappeared.Send a disengagement letterWait for a responseYou have to use reasonable means to locate themDestroy according to retention schedule


Of course dont close if you havent gotten paid!

Sometimes the client just doesnt come back. Look at the link to the sample disengagement letter again. There is a paragraph option for inactivity in the file. 17

Record Retention PlanPut it in writing!Share it with malpractice carrier and local ethics committee (CYA!)If you go against your plan, document it! The type of record may matter


Record Retention PlanCriminal Matters: As long as client is incarcerated or case is on appealCA and NJ = as long as client is aliveMinors: Until 4 years after reaching majorityAdverse Possession: At least 25 years after possession commencesEstate Planning: Until clients death plus 4 yearsFor More Specifics: Read This


CLE class on File Documentation, Retention and Destruction hosted by State Bar of Texas in 2006.19

Destruction of Client FilesReturn any client propertyMake sure you have sent a disengagement letterShred, Shred, Shred!Mobile Document ShreddingFair & Accurate Credit Transaction Act (FACTA): Consumer information? Take reasonable measures to protect against unauthorized use of the information in connection with its disposal.


Shredding: Link is just to a Google search -> Shredit; Mobile Document Shredding; Office Depot

According to FTC the Rule applies to attorneys!20

Quick Tip!Fondle Your Files!


Not as bad as it sounds!! Touch them, go through them, compare them with computer systems.

These habits will save you from malpractice in the future.

Look for: Misfiles, employee errors, no written contact with client recently, etc.

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Quick Tip!

Working on a Mac?

www.macattorney.com


Not really our topic but it was asked about and I love this resource!22