Please note that the following is not intended to serve as legal advice.
If something is never documented, it’s as if it never happened (legally, at least). Documentation is especially important for attorneys, where hearsay is usually inadmissible, and evidence of a smoking gun can result in a successful outcome for a client. Retention of certain documents is even mandated in many instances, and destroying a document can be considered spoliation or suppression of evidence. Email and other digital media have only complicated matters more by drastically increasing the number of records that pass across an attorney’s desk (or virtual desktop).
Unfortunately, attorneys don’t always practice what they preach—especially with document and email management. For law firms that do not have a Records Management Plan, some client communications are bound to fall through the cracks and never make it to the client’s file. Those lawyers only realize their mistake in worst-case scenarios, when they need a document but can’t find it in the file.
This article will explain the importance of document and email retention and which rules and regulations may apply to you and your firm.
Why are document and email management so important for lawyers?
- Protection against malpractice claims. Should a malpractice claim ever arise, your notes and files can provide an invaluable resource to helping you mount a defense. As a result, it is important to document everything in writing, including legal strategy, and verbal conversations with clients. For example, if you give advice to a client and he or she decides not to follow your recommendation, you should document your advice in the client file, the fact that the client has been informed of the legal basis for your recommendation, the benefits of following that course of action, potential repercussions to deviating from your recommended course of action, and the client’s stated reasons for disregarding your advice. A malpractice statute of limitations can range from five to six years under contract law. However, the discovery rule and doctrine of continuous representation can toll the statute of limitations period substantially. In addition, there are a number of exceptions to the 5-6 year retention period, including matters involving criminal law, minors, and estate plans for clients who are still living. Because there are so many exceptions, every client matter should be carefully reviewed before being closed and reviewed again before either being destroyed or returned to the client.
- Legal holds. A legal hold (or litigation hold) is part of the eDiscovery process that is triggered when a lawsuit has been recently filed or a future lawsuit or investigation is “reasonably anticipated.” The legal hold notice directs the recipient to identify and locate records pertaining to the matter described therein, and suspend activities that could potentially alter information that must be preserved, including the routine destruction of that information. The goal is to freeze the data at the time of the triggering event. Without adequate email management measures, the firm would have to sort through all of its electronically stored information (ESI) to find the relevant data and make sure that the ESI is preserved, without being altered or deleted. With well-organized files, it is much easier to find the information that needs to be preserved and comply with the notice. If your files are not organized, counsel will have to comb through all of the company’s ESI to find the relevant information, wasting time and valuable resources.
- Revenue capture. If a law firm is not adequately maintaining its records, it is likely that its attorneys are not completely logging their time and accounting for all of their billable hours. Failing to document the terms of a fee arrangement can also result in an inability to collect from the client. And even if attorneys properly log their hours and bill the client, the client may dispute the amount of work done and require that the firm produce all of their work product to demonstrate that the bill is an accurate reflection of the amount of work they completed. If the client’s file is not complete, the firm may not be able to collect on the entire bill.
- Reducing administrative friction. Well-organized files are easier to navigate and help attorneys serve their clients more efficiently, leading to increased productivity and improved client satisfaction. AI-powered document and email management solutions like ZERØ further free up an attorney’s time, so they can find information quickly and easily, spend less time on administrative tasks, and get back to actually practicing law. Furthermore, differentiating inactive and past clients in a letter of closure that is subsequently documented can quickly resolve conflicts of interest, making conflict checks less onerous.
Which rules apply to lawyers’ retention and destruction of legal documents?
There are a number of regulations that pertain to the retention and destruction of legal documents, but these can vary by jurisdiction. Regulated industries may have additional rules. Some examples include:
- The ABA’s Model Rules of Professional Conduct, Model Rule 1.16(d) regarding the termination of the attorney-client relationship
- The ABA’s Standing Committee on Ethics and Professional Responsibility Formal Opinion 471 (2015)
- HIPAA (1996) mandates that healthcare files be kept for 7 years
- Sarbanes-Oxley, applying to clients in the financial sector, also has a 7-year rule
- The U.S. Department of Defense’s Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) has a “Disposal Rule” which states that any person who maintains or possesses “consumer information” for a business purpose must 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