The Importance of Keeping Complete Client files

Do you keep a complete copy of your client files?  If not, does your reasoning fall into one of the following categories:


Let’s consider these arguments individually.

Rationale: I don’t want to store the paper

Agreed!  I don’t blame you one bit.  Talk about inconvenient!

  • You could keep files at home, but no one wants to do that and some of us don’t have the space.
  • You could keep files in your office, but it can look like a clutter bomb went off.
  • This leaves the expensive option: keeping files off-site.

Solution: Scan your closed files

The easiest solution is to stop adding to the problem.  Resolve to scan your closed files starting this year.  Most practitioners will need a scanner for Oregon eCourt.  Put it to work as a file retention tool.

Rationale: Scanning is too time consuming

If your paper files aren’t “scanner” friendly, digitizing them at closing time can be tedious and time-consuming.

Solution: Make your life easier and scan as you go

Scanning paper as you receive it means all file materials are electronic from the start and the work is done automatically over the life of the file.  In fact, if you “scan as you go,” there is no reason not to simply be paperless.

After scanning, paper can be:

  1. Shredded
  2. Given to the client
  3. Kept for a designated amount of time in a general chron file
  4. Kept for a designated amount of time in simplified client file (e.g., dropped into an expanding file folder)

Exceptions may apply to certain types of originals.  See the PLF File Retention Guidelines, available on the PLF website.

Rationale: The court has all my pleadings

This is a specific example of the argument that if someone else has a copy of the documents stored in my file, I don’t need to retain my set.

Solution: Keep it real

No one else possesses your exact client file, as you gathered it, for the purpose you gathered it.

When you decide that it isn’t necessary to keep copies of the documents you filed in court, the medical records used to prove your client’s damages, or some other part of your file on the grounds that “someone else has a copy,” you are taking a huge risk.

Many a lawyer has regretted the decision not to keep records because “they were available elsewhere.”  For example, the lawyer who said he withdrew from a case long before a judgment was entered against his former client.  The lawyer claimed he withdrew, but had no documentation in his file.  The court’s Register of Actions showed receipt of a letter from the lawyer seeking to withdraw, but when a PDF of the court file was obtained, there was no letter.  Maybe the letter never made it into the paper file.  Or perhaps it was missed when the file was scanned.

Regardless, the moral of the story is pretty apparent: anyone (including a court clerk) can misplace, misfile, or lose a document.  Never rely on another person or entity to keep your records.  PLF claim files are replete with similar examples.

In the event of a legal malpractice claim, it may be crucial to prove what you did nor did not have in your file.  And while it may be possible to obtain duplicate records, doing so does not establish they were previously in your possession.

Additionally, defending the practice of discarding part of your file can be quite uncomfortable at deposition or in front of a jury.  Jurors hold lawyers to a high standard and often naturally have sympathy for the plaintiff bringing a claim.  If your testimony shows that you shredded part of your file, jurors may draw the wrong conclusion about your motives.  Play it safe and keep your complete file.

All Rights Reserved [2015] Beverly Michaelis


Scanning Documents for eCourt

mouseIn my last two posts, I discussed the 10 steps all practitioners should take to get ready for eCourt and how to manage the anxiety and stress of transitioning to the eCourt system.

This week the focus is on two essential eCourt tools: PDF and OCR software. 

Efficiency with a 2 in 1 Solution

There is no doubt in my mind that a two-in-one solution is best: PDF conversion software with OCR capability built-in. 

Most practitioners know immediately what a PDF document is, but not everyone is familiar with the acronym OCR

OCR refers to “optical character recognition,” and OCR software does exactly that.  It takes a scanned image – like your printed pleading document – and uses software to recognize the text on the page, making your scanned document searchable.  This is a necessity for eFiling under the Uniform Trial Court Rules. 

Software that can perform these two functions simultaneously is a great time saver. 

Assuming you have a working scanner that meets your needs and is compatible with your operating system (Mac OS or Windows 7/8), the next step is to get your hands on two-in-one PDF and OCR software.  If you don’t already have a scanner, see last week’s post for suggestions

Top Three Choices for PDF/OCR Software

  1. For me, the number one choice for PDF/OCR software is Acrobat XI.  As I said last week: get the “Pro” version for the redaction features. Adobe is running a 20% off sale on monthly subscriptions for two more days (the sale expires December 3).  See last week’s post to learn more.
  2. Nuance Power PDF Advanced would be my second choice.  Over the years, Nuance has expanded product features to compete against Acrobat – to the consumer’s benefit. 
  3. Coming in last is PrimoPDF.  I admit this is my personal bias, however, I don’t feel it is as robust as the other two choices. 

All three of these programs convert to PDF and all three have OCR software built-in to make your scanned documents text searchable. 

Setting Acrobat XI Pro to OCR Automatically

By default, Acrobat XI Pro should be set to OCR automatically if you initiate document scanning by using the program.  To verify that Acrobat XI Pro is set to OCR automatically, follow these steps:

  1. Start Acrobat XI Pro 
  2. Select Create
  3. Choose “PDF from Scanner”
  4. Move your cursor to the bottom right of the pop-up menu and select “Configure Presets…”
  5. Toward the bottom of the “Configure Presets…” box, verify that “Optimize Scanned PDFs” and “Make Searchable (Run OCR)” are selected
  6. Click Save then Close

Acrobat XI Pro will retain these settings.  As long as you initiate a scan from within Acrobat XI Pro, your documents will automatically be OCRed.  Follow these five simple steps to scan a document using Acrobat XI Pro:

  1. Load the document(s) in your scanner
  2. Start Acrobat XI Pro 
  3. Select Create
  4. Choose “PDF from Scanner”
  5. Select Black & White Document

and you’re done! 

Prove to Yourself that Your Scanned Document is Text Searchable

To prove that your PDF is searchable, type <ctrl> F if you are a Windows user; <command> F if you are a Mac user.  The “Find” box pops up:

find box

Enter a search term you know is contained within your document, such as your client’s name.  Click Next.  In a text searchable PDF, Acrobat XI Pro will jump to the first instance where the search term is found.

[All Rights Reserved – 2014 – Beverly Michaelis]





What Happens to the Paper in Paperless Offices?

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