Law firms have begun to realize the importance of having a clearly defined and consistent information management strategy that is aligned with their strategic business goals. A document retention policy provides the framework for firms to implement policies that will reduce costs, mitigate risk and help to gain control of vast amounts of information. This article will address the issues that firms should consider when preparing to put a retention policy in place.
There are many factors that may prompt a firm to create a retention policy. Often these motivators are driven by rising costs of storing physical records and managing growing electronic information stores. Risk management issues may come into play as well. Firms overwhelmed with the increasing volume of information they must manage look to retention policies as an answer to their predicament.
Today, most information created and managed during the course of a client-matter representation is electronic. Firms continue to create and use physical client-matter files, but much of the electronic matter content exists in multiple, disparate, and unstructured information stores. To manage information in accordance with a records retention policy, firms must clearly delineate what information is considered a record for purposes of preservation.
Attorneys and other law firm staff understand the definition of a record in different ways. For example, e-mail communication between a client and attorney often validates that an attorney is adhering to professional responsibility guidelines regarding communicating with clients. Before the evolution of e-mail, a telephone conversation between an attorney and a client would be documented in a written memo for inclusion in the physical matter file. If a communication between the client and attorney is substantive, this information needs to be documented and protected in the manner in which it was received.
Attorneys need to grasp the ethical issues that should govern the way they manage client-matter information. Firms shoud implement their systems based on ethical duties to protect client confidentiality and keep client property safe.
Designate Repositories of Record
Firms need to designate repositories for storing client-matter records. Deliberations often will ensue within a firm as to where electronic matter information should reside. The "best" repository to manage electronic client-matter content must take into account future access and retention needs. Compliance with a retention policy can only happen if a firm has control of information.
During the lifecycle of the matter representation, occasions may arise that require an ethical screen to restrict access to specific client matter information, such as when an attorney resigns from one firm to join a new firm. An ethical screen may be justified because the attorney's involvement with a matter in their former firm may conflict with a client of the new firm. To successfully erect an ethical screen to prevent unauthorized access, there must be policies within a firm to designate where information can be stored.
Develop Protocol to Organize and Categorize Client Information
In anticipation of implementing a retention policy, the firm should consider developing standards for identifying and organizing client-matter information. These standards should consider file ownership rules. State bar associations' guidelines and opinions vary on what aspects of the client-matter file belong to the client and what aspects of the matter file belong to the firm. Firms should research professional guidelines and work with internal legal department and/or general counsel to develop categories that are consistent with firm's understanding of ownership.
ABA Rule 1.15 - Safekeeping Property states "A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. . . Other property shall be identified as such and appropriately safeguarded. . ." To be in compliance with this rule, valuable information or materials provided to the firm by the client should be returned to the client. If the firm assumes custodial responsibility, there needs to be policies to protect these materials. When a new matter is opened, attorneys should discuss with their clients strategies for communicating and disseminating electronic information.
At the time of writing this article, a case is pending where an outside law firm is defending itself in a suit brought by a former client. The attorneys involved could face sanctions from the court and possible disciplinary action from their state's bar association surrounding e-discovery errors. There, the attorneys requested their former client waive privilege on attorney-client communications. The judge denied the request but, interestingly, has allowed the attorneys to use information identified as work product in their defense. The outcome of this case will have far-reaching implications within the law firm community but serves to underscore the importance of categorizing client matter information.
As e-mail use continues to increase, attorneys have had to assume the role of records manager and be responsible for managing electronic client-matter information. Firms need to train attorneys to assume this role or attorneys will continue to use their own methods to manage client-matter information with varying degrees of success.
If the culture of your firm has traditionally allowed attorneys to manage content in their own ways, you need to plan now for a major culture change. IT needs to focus more on how timekeepers accomplish tasks and understand their specific information management challenges before making any drastic changes that will require a change in attorney behavior.
- What help do attorneys need to better organize electronic matter content?
- What resources can be provided to help attorneys manage the backlog of unstructured, unclassified client-matter content?
- Is it intuitive to attorneys as to where electronic matter content should reside?
- Do they understand how to use the systems that are designated repositories?
Assemble a Records Retention Task Force
Implementing a retention policy is more than writing a policy document and researching relevant legal statutes and ethical opinions. A well thought-out retention policy will provide a structure for managing information throughout its life-cycle.
This strategic project will require coordination and commitment from several key areas in your firm. IT will need to be involved so they can understand how technology should be deployed to comply with the retention policy. IT also can serve an educational role in communicating limitations and capabilities of current applications to adhere with a policy. Firm general counsel and/or risk management partners will be instrumental in galvanizing support for initiatives that will support loss prevention goals. Proactive management of electronic content will reduce the complications associated with legal evidentiary requirements related to electronic discovery. If your firm has a records manager, they can bring an understanding of best practices for developing a retention policy. Depending upon the firm, you may want to involve practice leaders as well.
Once the team is assembled, take time to understand and document the goal of the policy. The timeframe from development to deployment of a policy will depend on several factors including commitment of both internal and external resources to the project. Many of the recommendations stated in this article can be accomplished in tandem with the development of a policy.
As law firms move towards creating a clearly defined and consistent information management strategy, they are realizing such a policy will help reduce costs, mitigate risk and control vast amounts of information. Knowing the issues that need to be considered is the first step in creating a policy that will be aligned with the firm's strategic business goals and ultimately help serve clients better.
Provided by Nancy Beauchemin of InOutsource Consulting.