Digital File Retention

 

If your answer to the poll was “yes,” or “I should,” give yourself a pat on the back.

If you don’t have a digital file retention policy, or more specifically, don’t believe you need a policy, please consider the following:

The more data you store, the more you must protect, and it isn’t free

Data protection is costly and doesn’t end with buying a server. If your firm stores digital files in-house, you must maintain your investment.  This means replacing obsolete storage media, preserving and testing backups, purchasing cybersecurity coverage, investing in and updating security software, budgeting for internal or outsourced IT services, and recovering from data theft, data breach, or system crashes if they occur. Cloud storage may alleviate some of this, although best practices dictate that cloud storage should be secondary to keeping on-premise copies of your data.

The duty to safeguard

Protection isn’t just a matter of out-of-pocket expenses, it has real ethical significance:

Taken together, Rule 1.6(c) and Rule
5.3 require a lawyer to take steps to prevent
disclosure of client information
through the misuse of technology, by
themselves or by any technology vendor
on which the lawyer relies. A lawyer’s
reasonable efforts to protect client data
might include reviewing a third-party
vendor’s terms of service to ensure that
they comply with industry standards relating
to confidentiality and security, and
that those standards are consistent with
the lawyer’s own professional obligations.

Mark Johnson Roberts, “Electronic Competence: As Technology Advances, So Must a Lawyer’s Understanding of It,” OSB Bulletin (June 2017).

If you place no limitations on digital file storage and something bad happens, more client data is exposed. Why would you want to take that risk?

Keep it and retrieve it

If you get into the perpetual storage business, be prepared to retrieve what you keep. Adhering to file retention recommendations and ethical requirements is one thing. Digging up records from 20, 30, or 40 years ago because you’ve chosen not to enforce a destruction policy is something else.

Setting reasonable digital file retention policies

For guidance on file retention, contact your local ethics hotline or professional liability carrier.  In Oregon, the following resources are available from the Professional Liability Fund. Select Practice Management > Forms.

  • Checklist for Scanning Client Files
  • File Retention and Destruction Guidelines
  • Production of Client File
  • Retention of Electronic Records

Mid-size and larger firms should consider a membership in ARMA, the Association of Records Managers and Administrators.  Another good resource is AIIM, the global community of information professionals.

All Rights Reserved 2018 Beverly Michaelis

 

 

You Need a Break

Memorial Day is right around the corner.  While you’re honoring our military men and women and taking time to relax over the three-day weekend, I want you to start planning your summer vacation.  Yes, I just said that.

Build time off into your work schedule now – no excuses!  It takes effort and organization, but your body and mind will thank you.  We all need true recuperative time away and three days just isn’t enough.  Here’s a game plan to help you get started:

Budget now to go on vacation later.

“If I’m not at the office, I can’t bill.  If I can’t bill, I won’t get paid.”  True enough, but there is a solution:  budget for your vacation.  A bit of research and number crunching is in order here. First, calculate your vacation expenses. This should be relatively easy.  Next, quantify the lost revenue you need to replace during your time out of the office.  Now that you know how much you need, begin setting aside funds every week to meet your financial goal.  If necessary, find little ways to cut back that can really add up: like bringing your lunch to work, deferring your daily Starbucks fix, using public transportation, or telecommuting.  Saving weekly will keep you on track and help manage expectations. If you’re just getting started, then your plans this year may be more modest.  Next year, you can begin saving for your summer vacation in January.

Clients are important enough to schedule.  So is your vacation.

Work will never go away, but I guarantee that if you look ahead in your calendar you will find a block of time with no commitments.  Even if you haven’t made plans yet, block the time out now before your calendar fills up.  If you have a habit of backsliding, enlist your family as enforcers.  This time should be sacred.  If you need an extra incentive, consider non-refundable travel reservations.

Preparation is Key!

If you’re a member of a firm, going on vacation is a matter of meeting with other lawyers who will be covering cases during your absence.

If you are a sole practitioner, use the buddy system.  Find a colleague who is experienced in your practice area and willing to cover for you.

This arrangement is usually reciprocal and is helpful if you have an unexpected absence from the office due to injury or a medical condition.

Follow this checklist:

  • Notify clients, opposing counsel, judges, or other appropriate parties that you will be out of the office;
  • Prep your files.  They should be well-organized and current, with status memos so your buddy can easily step in if needed;
  • Create a “Countdown Schedule.”  Identify what needs to be done when and whether certain tasks can wait until your return;
  • Allow for wind down.  As your vacation approaches, leave time in your schedule to finish up last minute work.  Reduce or refer out new matters;
  • Train staff.  Do they have a clear understanding of office procedures?  How will they screen client calls during your absence?  Give them parameters for contacting you or your buddy in the event of an emergency.
  • Resist constantly checking voice mail, e-mail, or text messages.  Technology is a God-send, but part of rejuvenation is taking a break from our instant Internet society. Checking in is okay, but stick to a schedule to avoid obsessing over what is going on back at the office.  Remember – you have an emergency plan in place.  If something happens, staff or your buddy will get a hold of you.
  • Avoid post-vacation overload.  Just as you blocked out dates to go on vacation, allow yourself time to get back up-to-speed.  Otherwise, you’re right back where you started.

Give yourself and your family a well-deserved break.  With a bit of organization, you can budget for (and enjoy) your time off.  Thank you for tolerating my nagging!

All Rights Reserved 2018 Beverly Michaelis

Postscript

As we speak, I am planning my escape now!

Tips for Improving Client Relationships

Hot off the presses!  Get your copy of Tips for Improving Client Relationships, a free eBook available to download now.

Topics include:

  • Effective communication techniques
  • How procrastination affects client relationships
  • How to say “no”
  • Integrating client communication into your everyday workflows
  • Thanking clients as part of your
    closing ritual
  • The Art of CYA
  • Why letters may be superior to emails
  • When to call or meet in person vs. texting or emailing

Each section contains straightforward tips designed to help you build and improve upon client relationships quickly and easily.  Download your free copy today.

While visiting the online store, don’t forget to peruse the on demand CLE section with these offerings:

All programs are current and accredited by the Oregon State Bar.  Visit the online store for details.  Every on demand CLE includes:

  • MP4 download (combined audio and video file)
  • M4a download (audio only)
  • Written program materials, including presentation slides and resources
  • Answers to polling questions asked during the live CLE
  • MCLE Form 6 for self-reporting of MCLE credits

All Rights Reserved Beverly Michaelis (2018)

Oregon eService CLE

Registration is now open for
Oregon eService, scheduled for June 6, 2018 from 10:00 a.m. to 11:15 a.m., PDT.

This live, online webinar is for experts and novices alike. An opportunity to polish skills and apply tips straight from the courthouse or understand eService from the ground up.

Topics include:

Using eService

  • How to eServe in four easy steps
  • Service of process in the eFiling world: UTCR 21.100
  • Six compelling reasons to use eService

Identifying eService Exceptions

  • To eServe or not to eServe

Responding to Service Contact Issues

  • Requirements of UTCR 21.100(2)(a)
  • Pursuing sanctions under UTCR 1.090(2)
  • Best practice recommendations

Deliberating the Case of: eService vs. Service by Email

  • UTCR 21.100(4) vs. ORCP 9G
  • Pros, cons, and myths of service by email
  • Best practice recommendations

Drawing on Courthouse Wisdom: Do’s and Don’ts

  • How to use the “filing on behalf of” field
  • Should you or shouldn’t you serve yourself?
  • Multiple service methods
  • How to copy firm members on filings
  • Proper Certificates of Service
  • And more!

Getting Help and Improving eFile & Serve

  • Get assistance and give your input

Register Now
$25 – Visit the Upcoming CLE page or choose the registration link below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

REGISTER NOW
Oregon eService CLE

 FAQs

Are group discounts available?
Discounts are available to firms who register 5 or more attendees. Contact me for a discount code before you register: beverly@oregonlawpracticemanagement.org.

Do the Programs Include Written Materials? 
Yes. Written materials are distributed electronically to attendees.

Are questions welcome?
Absolutely. Questions may be submitted any time during the live event or afterward via email. Attendees are also encouraged to participate in live, anonymous polling.

Where is the program being held?
This program is a live, online webinar.

MCLE Credits
1.25 practical skills/general MCLE credits have been approved by the Oregon State Bar.

Can’t Attend?
Video and audio recordings will be available to download along with the program materials shortly after the live program event.  Price: $25. Contact me or visit my online CLE store to place an order.

How to Treat Bad Clients

When you saw this post title, how did you react? Was your first thought: “Kick ’em to the curb” or “I wonder where this is going?” If it was the former, don’t feel bad – it’s my knee-jerk reaction too.

When we hear the words “bad client,” we instinctively cringe. It conjures up past experiences we would rather not relive. Frankly, nothing could be more unpleasant. So what should we do?

Remedies for bad clients

Want to weed out or eliminate bad clients? Nothing beats:

  1. Screening at intake;
  2. Controlling expectations; and
  3. Knowing when to say no.

Trouble is, most of us know these lessons.  So …

What if a bad client squeezes by?

If there is an irremediable breakdown in the lawyer-client relationship and withdrawal is viable, do it. At this stage, it isn’t going to get better. Yet, some lawyers refuse to do so.

Why would anyone hold on to a client who belittled and berated them? Denied that telephone conversations or email exchanges occurred? Refused to produce materials requested in discovery? Insisted the lawyer use unethical or illegal tactics? (All actual events that have happened to lawyers I know.)

Money is generally the explanation. The lawyer can’t afford to forego the fee (or jeopardize her job). There are other reasons too, like fear and intimidation.

I hope you never experience any of this. If you do, I hope you are strong enough to get out. If you want to talk it over with someone, consider calling one of the confidential attorney counselors at the Oregon Attorney Assistance Program (OAAP).

Is there another approach?

I was motivated to revisit this topic by blogger Celia Elwell. In a recent post, she took on lawyers and legal staff who retaliate against ill-tempered clients by putting the client’s work at the bottom of the stack. Since I’ve witnessed this too, I wanted to share this point made by Ms. Elwell:

Most people, as a rule, do not call an attorney’s office because they are having a good day. Before they became our clients, they realized they had a problem, tried to deal with it, were unsuccessful, stressed, and lost sleep. In short, we are not seeing them at their best.

Take good notes when your clients vent, rant, or repeat themselves. Because they are upset, they may be mistaken or confused. Let the client know that you are listening to them. Interrupt only when you need them to repeat something to make sure you get it right. Document the clients’ concerns, and tell your attorney they called and why.

While her remarks are directed toward staff, they are good reminders for us all.

If you didn’t spot it, notice I suggested above that withdrawal made sense if (a) it was viable and (b) there was an irremediable breakdown in the lawyer-client relationship.

What if you aren’t there yet? This is when Ms. Elwell’s advice comes in handy.

Do not under any circumstances intentionally retaliate by putting the client’s work at the bottom of the stack. At the least, it is unprofessional. It will also likely result in a bar complaint and/or legal malpractice claim. Instead, take the high ground:

  • Try to diagnose what went wrong. Is the client mad at you or someone else? Is the client mistaken or confused? Is this about money? How stressed is the client? Consider scheduling an in-person meeting to air out client concerns.
  • Go out of your way to be courteous and considerate. Instruct staff to do the same.
  • Do high quality work in a timely manner.

It’s easy to be resentful and decide that we’re going to give what we get. But if you go out of your way to appease the upset client, you remove all rational grounds for disputes, complaints, and claims. It’s better to remain professional, even if the “bad” client never appreciates it.

All Rights Reserved 2018 Beverly Michaelis

Postscript

For more tips on improving client relationships, check out this CLE:
7 Steps to Building Better Client Relationships.