So you’ve decided to take the plunge and go “paperless.” Great idea! I’m all for it. But have you thought through what will become of the paper? Can you truly kick it to the curb? (Or at least run it through your shredder before disposing of it?) Not so fast! It’s a little more complicated than that.
- First, satisfy yourself that the scanning process has integrity (no missing documents or incomplete PDFs).
- Next, make sure clients are on board. Communicate file retention policies in your initial fee agreement and again at the time of file closing.
- If you are scanning files at the end of representation, review the paper file carefully before shredding:
- Does the file contain any client property? Documents, photographs, receipts, bills, cancelled checks, diaries? Materials provided by the client are generally considered the property of the client and should be returned to the client.
- Does the file contain any original documents whose authenticity could be disputed? If so, keep the paper!
- Does the file contain any documents of legal importance? Items that are enforceable only in paper form? Examples include: Wills, Powers of Attorney, Directives to Physicians, Deeds, Car Titles, Promissory Notes, Contracts, and Fee Agreements. (You may need your original signed contract with the client if you pursue a collection action.)
- Does your practice area require that you retain certain original documents such as the Affidavit of a Custodian in a guardianship (see ORS 126.725) or the original signed bankruptcy Petition filed on behalf of a debtor? Know the rules and statutory requirements that apply to your practice area.
- Disposition of paper files must comply with applicable laws and the Oregon Rules of Professional Conduct. The Fair and Accurate Credit Transaction Act (FACTA) Disposal Rule (the Rule) requires any person who maintains or possesses “consumer information” for a business purpose to properly dispose of such information by taking “reasonable measures” to protect against unauthorized access to or use of the information in connection with its disposal. The Rule defines “consumer information” as any information about an individual that is in or derived from a consumer report. Although the Rule doesn’t specifically refer to lawyers, it may be interpreted to apply to lawyers, and the practices specified in the Rule would safeguard clients’ confidential information. “Reasonable measures” for disposal under the Rule are
(1) burning, pulverizing, or shredding physical documents; (2) erasing or physically destroying electronic media; and (3) entering into a contract with a document disposal service. FACTA took effect June 1, 2005. Also see Oregon State Bar Legal Ethics Op 2005-141.
- The responsible lawyer on the file should sign-off before the client’s paper file is destroyed.
The Professional Liability Fund recommends that lawyers refrain from accepting original client property, or at a minimum, return client property at the time of file closing. For more information, see “Closing Files,” a chapter in A Guide to Setting Up and Running Your Law Office, published by the PLF and available on the PLF Web site. The PLF also offers a File Closing Checklist. From the PLF Web site, select Practice Aids and Forms, then File Management.
If you currently keep original client Wills, you may want to re-think that decision.
ORS 112.815 provides:
“An attorney who has custody of a will may dispose of the will in accordance with ORS 112.820 if: (1) The attorney is licensed to practice law in the state of Oregon; (2) At least 40 years has elapsed since execution of the will; (3) The attorney does not know and after diligent inquiry cannot ascertain the address of the testator; and (4) The will is not subject to a contract to make a will or devise or not to revoke a will or devise.”
For a complete Checklist for Imaging Client Files and Disposing of Original Documents, visit the PLF Web site, select Practice Aids and Forms, then Technology.
Copyright 2011 Beverly Michaelis