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

 

 

How Long Do You Need to Keep Closed Files?

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

Preserving Mobile Data in Anticipation of Litigation

In a recent post, eDiscovery expert Craig Ball makes the case for routine preservation of data contained on mobile devices. I concur.

The tendency is to dismiss or ignore the degree to which we lean on our smartphones and tablets. We either assume the data is preserved elsewhere or we convince ourselves that mobile devices couldn’t possibly contain anything relevant or unique. Both beliefs are false. Craig’s post is a wakeup call for both law firms and their clients. Consider his key points:

  • Texting has overtaken email as a means of direct and candid communication. No competent business person would never send a letter or email without retaining a copy. The same standard should apply to text messages.
  • Mobile data is accessible and easy to backup using iTunes. (Yes, I know the interface deserves a Rotten Tomatoes score of 0%, but it does work.)
  • Preserving data does not mean it must be produced.

There is much more to this topic, and I encourage you to read the full post.

A Lesson for Lawyers

There is a takeaway for lawyers too. In Oregon, the “client file” includes text messages if they bear on the merits of a client’s position in the matter. This begs the question: are you preserving client texts? If not, look into Zipwhip, which I’ve discussed before. It has many advantages, not the least of which is the ability to save texts as PDFs to the client file.

All Rights Reserved 2017 Beverly Michaelis

My Desk, My Enemy

Desks are the pedestals of our productivity. How we organize the stuff on them has a big effect on how well or if we get things done in a timely fashion. But just as important as these practical concerns is the impact it has on our mental health.

While researching content for a presentation, I came across this older post: My Desk, My Enemy: 6 Helpful Ways to Get Organized.  Written by Dan Lukasik and published at Lawyers with Depression, it contains helpful information that remains relevant.

Organizational Style

Dan begins by describing the four organizational styles identified by Kelly Lynn Anders in her book, The Organized Lawyer:

Stackers organize by topic in stacks. They are visual and tactile and like to give the appearance of order. The busier these people are, the more stacks they have.

Spreaders are visual like stackers, but must be able to see everything they’re working on.

Free Spirits keep very few personal belongings around the work area. They like new ideas and keep reports, books, articles and magazines near.

Pack Rats have emotional ties to things. They like the feeling of fullness around them and like to tell stories about what’s in the office.

These categories are insightful, and describe a fair number of people I’ve worked with. But they fail to recognize what happens when a lawyer is depressed, depleted of energy, and has no motivation to get organized.  Dan calls this “the depressed desk:”

When a lawyer has depression, motivation and organization are BIG problems. A lack of energy blunts motivation. We already know that it’s a good idea to keep our desk together, but there simply isn’t much neurochemical juice to get it done….

We must outfox depression. It would have us do nothing. So we must do something. 

Dan’s Six Simple Solutions [Abbreviated]

  1. Get rid of all those pens. Only keep three or four.
  2. Take home any books that you don’t use on a regular basis. [I would add: do the same with magazines and legal periodicals. Create a “free spirit” space at home if this is your organizational style.]
  3. Hide cords – use twist-ties or coil your cords up.
  4. Only keep on your desk what you need for that day. Then section off your desk and workspace so that everything has a specific space.
  5. Have a dump day.  Pull everything out, put it in a big pile, sort, and toss.
  6. Schedule a date and time to clean your desk.

Read Dan’s original “six simple solutions” here.

Parting Thoughts

It’s easy to be skeptical of simple solutions.  How could tossing excess pens or hiding cords possibly help?  What difference does it make to clean off my desk?  

Trust me, it helps.

  • Eliminating clutter reduces stress and anxiety.
  • Organizing and prioritizing gives you back a sense of control.
  • Compartmentalizing allows you to plan for what you need to do and when.
  • Freeing up space allows you to breathe, think, and work.

You owe yourself, and you deserve, a pleasant work environment.

If you are a lawyer with depression, consider following Dan’s blog and connect with one of the confidential attorney counselors at the Oregon Attorney Assistance Program.

[All Rights Reserved 2016 Beverly Michaelis]