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

 

 

Best Password Generators for the New Year

A reader recently recommended I revisit the subject of random password generators, many of which also log passwords for us.  Everyone seems to know about LastPass, but are there any other options?

Luckily, TechRadar and PC Magazine have done the work for us.  LastPass topped both lists for “best password generator of 2017,” followed by DashLane.  Also worth your consideration:

Which is the best?

It depends on what you want the password generator to do.  For example, RoboForm also serves as a digital wallet and form filler – helping you securely complete online forms.  If your top priority is free, look at KeePass, but remember the features are limited.  For a side-by-side comparison of cost and what each option offers, see the PC Magazine post.  Once you’ve narrowed your choices down, check out TechRadar, which has more in-depth reviews.

All Rights Reserved – Beverly Michaelis 2018

Last Chance to Register for 7 Steps to Building Better Client Relationships

Last Call to Register for “7 Steps to Building Better Client Relationships”

Join me for a CLE on Wednesday, December 6, 2017 about how to cultivate your network, balance client expectations, proactively control social media content, meet client needs, and become more client-centric by exploring the 7 steps to building better client relationships:

  • Capturing better clients
  • Polishing communication skills
  • Advancing client service through technology and staff
  • Managing social media
  • Improving client satisfaction
  • Strengthening client retention
  • Renewing relationships

Topics include how to CYA the right way, how to say “no” gracefully, dos and don’ts when responding to negative online reviews, how to thank clients as part of your everyday, the simple six-step process to stay in touch, and why you should modernize fee arrangements and billing.

Date/Time/Location

Wednesday, December 6, 2017 from 10:00 a.m. to 11:30 a.m. Pacific Time. This is a live, online webinar.

Who Should Attend?

Lawyers, office administrators, or staff – anyone interested in building better client relationships.

Group Discounts

Discounts available to firms who wish to register 5 or more attendees. Contact organizer to arrange a discount code before registering: beverly@oregonlawpracticemanagement.org.

Does the Program Include Written Materials?

Yes. Written materials are distributed electronically with your registration confirmation.

Ask Questions/Live Polling

Questions are welcome during the live event. Attendees are also encouraged to participate in live, anonymous polling.

Registration Fee

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

Eventbrite - 7 Steps to Building Better Client Relationships

MCLE Credits
1.50 practical skills pending.

Can’t Attend?

Video and audio recordings of 7 Steps to Building Better Client Relationships will be available to download along with the program materials following the December 6 CLE. Price: $25. Contact me or visit my online CLE store after December 6.

All Rights Reserved [2017] Beverly Michaelis

Lawyer Transitions: Departing Your Firm

The days of spending an entire career at one firm are long gone.  By the end of three years, nearly half of all associates leave.  Partners bail out for many reasons – compensation, lifestyle choice, and conflicts with other partners – to name a few.

No matter who you are, tread lightly when you leave.  Departing lawyers have ethical, contractual, and legal responsibilities.

If you are a partner

Conduct your partnership withdrawal in a manner that honors the contractual and fiduciary responsibilities owed to your fellow partners.  Contractual duties are controlled by your written partnership agreement.  Fiduciary duties are described in case law and codified by statute in Oregon’s Revised Partnership Act.

If you are not a partner

Review your employment contract, employment letter, office policies, office procedures, or any other applicable terms that may control the process for terminating your relationship with your current firm or your obligations upon departure.

Are issues likely to arise?

Consult outside counsel experienced in the areas of lawyer mobility, partnerships, fiduciary duties, lawyer separation, and law firm dissolution.

Give notice before you contact clients

Inform the firm of your decision to leave before contacting any clients.  Failing to give adequate and timely notice to your firm or partners before you contact clients is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.  It may also constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Oregon RPC 8.4(a)(3).

Although there is no explicit rule requiring lawyers to be candid and fair with their partners or employers, such an obligation is implicit in the prohibition…against dishonesty, fraud, deceit, or misrepresentation. Moreover, such conduct is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.” In re Complaint as to the Conduct of Murdock, 328 OR 18, 25 (1998), citing, In re Smith, 315 Or 260, 266 (1992). See also OSB Formal Op No 2005-70; ABA Formal Op No 99-414.

Assessing your client caseload

Undoubtedly there are clients you would like to take with you, but there may also be clients you prefer to leave behind.  Draft a client notification letter informing clients of your departure.  Schedule a meeting with your supervising partner or other appropriate member(s) of the firm.  Bring a printout of your current cases and your draft client letter.  This meeting must occur before you contact any clients.  [Note: more than one notification letter will be necessary if you intend to keep some clients and leave others behind.]

For clients transitioning to your new firm

Make arrangements to obtain trust funds, copy paper and digital records, and sign new fee agreements.  Checklists documenting the steps to take when leaving a firm are available from the OSB Professional Liability Fund.

For clients you are leaving behind

Properly document client files by preparing memos describing the status of each case and any upcoming deadlines.  If you are attorney of record, withdraw or confirm that a substitution of counsel has been filed where necessary.  Otherwise, you remain on the hook.  Check out the resources available from the OSB Professional Liability Fund describing a lawyer’s duties upon withdrawal and termination of representation.  If in doubt, contact the OSB General Counsel’s office or consult with outside counsel.

Transition don’ts

  • Misleading clients about their right to choose counsel
  • Contacting clients before speaking to your firm about your departure
  • Taking client files without the knowledge or consent of the firm
  • Taking client money without the knowledge or consent of the firm
  • Taking firm property, including forms, research, or other materials, without the consent of the firm

Transition Dos

  • Put clients first.  Whether you are making a lateral move to another firm or setting up your own practice, remember that the client’s freedom of choice in selection of counsel is paramount.
  • Keep the transition as amicable, professional, and stress-free as possible. Contentious withdrawals alienate clients and damage relationships.
  • Remember to take a list of clients with you so you can screen for conflicts at your new firm.

Handled properly, your departure should be smooth and uneventful.

 

All Rights Reserved 2017 Beverly Michaelis

 

Negative Online Reviews

We all know that negative online reviews can be hurtful and maddening.  Last month I highlighted suggestions from the July Oregon State Bar Bulletin article by Linn Davis, with a few additions of my own.  Because I know this topic strikes a nerve, I wanted to share some further advice from our friends at NW Sidebar.

  • A reasonable and measured response is key. Blasting people who give you a negative review is not a good business model. You can try contacting the review site and asking for the review’s removal if you can prove the review is false, defamatory or written by a competitor. This, however, may not be successful, especially if the review is anonymous. See Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015) , when the court refused to force disclosure of an anonymous online reviewer’s identity.
  • You can respond directly to the review on the site. Be courteous and explain that due to your duty of confidentiality, you can’t address the facts of the complaint, but that you do not believe it presents a fair and accurate portrayal of the events. Make clear that you are always available to meet with former clients and address any concerns they may have.
  • If possible, try to contact the reviewer directly and seek to ameliorate the situation or explain to them further why the representation unfolded as it did. If this is successful, don’t hesitate to ask for an updated review.
  • Try to avoid further negative reviews by soliciting client feedback directly as the representation continues and in exit interviews. Try to give your clients every opportunity to air their grievances with you and your firm directly so they don’t have the need to vent in public.
  • Lastly, the best antidote to a negative review is positive reviews. Keep your profile updated and facilitate the opportunity for your other clients to post their own satisfied reviews.

via Responding to Negative Online Reviews — NWSidebar

As I’ve said before, I am not a fan of engaging with the reviewer/client online.  However, the idea of soliciting client feedback during and after the course of representation is stellar.  As Sandra Schilling notes, this is about giving your clients the opportunity to vent so they don’t feel the need to blast you online.  I would add: it may also be preemptive. While there will always be clients who are perpetually unhappy, most people are reasonable.  If you learn about a client’s dissatisfaction early, you can intervene and repair the relationship.  The unappealing alternative is to allow the client’s bad feelings to fester – never a good solution.

All Rights Reserved 2017 Beverly Michaelis