Tag Archives: Oregon RPC 1.15

Digital File Retention

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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

 

 

How Long Do You Need to Keep Closed Files?

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A fair question posed recently on the NW Sidebar blog.

As in Oregon, there is no rule for file retention in Washington. The only exception? Trust accounting records: five years from termination of representation in Oregon; seven years in Washington.

Guidance for Oregon Lawyers

So where can Oregon lawyers go for answers?  The best resource can be found on the Professional Liability Fund website.  Select Practice Management > Forms > File Management > File Retention and Destruction Guidelines.

Files should be kept for a minimum of 10 years as protection against legal malpractice claims. To learn more about ethical recordkeeping practices, see Ethical Guidelines for Client Files.

Guidance for Washington Lawyers

The NW Sidebar post suggests a four step approach:

  • Start with the Guide to Best Practices for Client File Retention and Management on the WSBA website
  • Check with your Washington malpractice insurance carrier
  • Consider the nature of each case (some immigration cases may be “live” 20 years from the time of initial representation)
  • Weigh the possibility of malpractice or discipline claims

In Oregon, the latter drives the minimum 10 year retention recommendation.

Multi-Jurisdictional Practices

Lawyers who practice in both states (or other states) may choose to keep files in conformance with each jurisdiction’s recommended practices or apply the strictest retention requirement.  Universal retention practices are easier to follow and enforce. Jurisdiction-specific retention practices may allow for earlier disposal of files.

What to do Now

Every firm should have documented file retention practices and a file closing checklist. Need a place to start? Consult the Guide to Best Practices for Client File Retention and Management on the WSBA website or use the Professional Liability Fund retention guidelines referenced above and the PLF sample File Closing Checklist.  [Available on the PLF website at Practice Management > Forms > File Management.]

Creating and using a file closing checklist ensures consistency and makes the file retention process easier for lawyers and staff.

All Rights Reserved – Beverly Michaelis -2017