J. Randolph Evans is a partner in McKenna Long & Aldridge's Atlanta office, where he is the chairman of the financial institutions practice.
Shari L. Klevens is a partner in McKenna Long & Aldridge's Washington office and is the chairwoman of the firm's law firm defense practice.
It is time to clean out those old files that fill the cabinets, line the halls and occupy conference rooms. Unfortunately, most firms have no written protocol for how long to keep old files. The result is an ad hoc system in which files are either kept forever (at significant expense), or destroyed on a case-by-case basis.
Many times, Murphy's law kicks in and the one file that's destroyed is the one file that an attorney needs later. Worse yet, the unhappy client wants to know why her file was destroyed while others were maintained.
The client file is one of the most valuable tools in defending against a legal malpractice claim. More often than not, the file dispels accusations of exaggerated neglect or error. Files confirm what was done and what was not. And, under Georgia law, once a claim has been made against the lawyer, any privilege shared by the lawyer and the former client is typically waived, and the lawyer may use the file to defend against claims.
Computers (and the "cloud") have changed the extent and amount of actual paper files that attorneys maintain. However, it has not lessened the need for written law firm practice protocols and procedures for document/file maintenance. Oddly, the existence of a written policy on document/file maintenance is as important as what the policy is.
The bottom line is that the maintenance and retention of files is a critical issue in the modern-day practice of law. Here is a start.
Have a written policy
The most important aspect of a document retention policy is that it is written and is provided to all employees at a firm. An undocumented ad hoc document retention policy does more harm than good. Instead, law practices should decide exactly what their policy regarding document and file retention will be.
A written policy ensures consistency among all law firm personnel. It avoids unnecessary misunderstandings with clients, courts, the bar and others. Basically, a written policy will help ensure that everyone is following the same plan and storing materials in the same way.
If the law practice does not have a current document/file retention policy, or if the law practice is changing or modifying the existing document/file maintenance policy, then the new protocols should have an effective date. This clearly defines a moment in time when the new policy applies. It also affords clients and other interested parties an opportunity before the effective date to express concerns or request modifications as it applies to an individual case or situation.
Once you adopt a document/file retention policy, communicate it. First, communicate it to all personnel of the law practice. The most important people to know and understand the document/file maintenance procedures are the people who have to actually follow them. This may mean training in addition to a written protocol or procedure.
Second, communicate it to clients. For new clients, include the document/file maintenance protocols in the engagement letter. Typically, the best way to accomplish this is some standard language in the engagement letter or fee contract with the written policy on record retention attached.
