How to Guide: Records Retention Policy Creation for Lawyers

It’s no secret that being a lawyer generates a lot of paperwork. Although there are some great online options available for storing documents (and even sharing them with clients), that doesn’t mean that it’s possible for every law office in the United States to become paperless. Many courts still require physical copies for filing as well as sending to the parties involved. Depending on the area of law in which you practice and how many clients you handle at any given time, you could end up with a lot of files. Your files will eventually become closed matters. So, what do you do with all of those closed files? The answer is: you consult your records retention policy.

If you don’t have a records retention policy, don’t worry. We’re going to walk you through how to create one. It’s much easier than you think (although it may take a little bit of time!).

Can’t You Just Keep Everything Forever?

Is a records retention policy a necessity? Can’t you just keep everything forever? There are three main issues with trying to hold on to every file until the end of time.

You’ll eventually run out of space. Keeping all of your files is impractical. At some point, you’ll run out of space for files. Then, you’ll need long-term storage solutions. You might have to move your old files to make room for your new ones. For virtual file storage, you’d need to make a substantial investment into your own equipment or virtual space.

Keeping everything comes at a cost. Moving your files to a new location will cost you manpower as well as an increase in what you spend to store your files. Long-term storage solutions won’t be free. Virtual solutions may have a one time fee if you’re buying your own equipment, but you’ll also pay to have your physical files converted and moved. You may also need to pay for IT specialists to help move your files and keep your equipment in good shape. For cloud-based solutions, you’ll pay a monthly or yearly fee.

You could face an ethics complaint. Your jurisdiction has its own rule on how long you should keep files. If you keep files longer than you should, you could cause yourself to face an ethics investigation. If a client files a complaint and you still have the file that should have been destroyed, you could take away one of your defenses: that you no longer have the file. If you don’t have the file because you destroyed it when you were supposed to, the matter could be dropped. Of course, there’s also a chance that having the file could mean that it’s easier for you to defend against a frivolous complaint.

Now that you understand the importance of a records retention policy, let’s look how you can create one.

Step 1 – Know the Rule in Your Jurisdiction

Before you create and implement your records retention policy, check the rules in your jurisdiction to learn how long you should hold onto files. This amount of time will dictate when you act on your policy. Make sure that this date is clearly written into your policy and procedure manual for records retention and destruction.

Step 2 – Outline Closing Procedures

Your records retention policy should detail the closing procedures that should be used when a client matter concludes.

Step 3 – Designate How Files Will Be Stored

Are hard files converted to digital copies? Are you saving both physical and digital files? Also, don’t forget to address when and how you’ll return material that belongs to the client.

Step 4 – Designate Where the Files Will Be Stored

Are physical files stored on-site or off-site? If files are stored off-site, what are the procedures for getting the files to that location? Is there a phone number to call for pick-up? Are digital files stored on your own server or is it stored with a particular cloud-based provider?

Step 5 – Explain When (and How) Files Should Be Reviewed for Potential Destruction

Will someone check the files every month? Do you have a system in place to determine the age of a closed file at a glance? Make sure that determining which files are ready for destruction is as fast, easy, and accurate as possible.

Step 6 – Determine Who Is Authorized to Make Retention and Destruction Decisions

While you can have support staff actually destroy files, only attorneys should be authorized to decide what should be retained and what may be destroyed.

Step 7 – List Which Files Should Never Be Destroyed Regardless of Age

There are some files that should never be destroyed. This includes files with outstanding judgments and files that have children who are minors and that haven’t become legal adults yet. Make sure that you list each file type that should not be destroyed along with if there is ever a time when the file may be eligible for destruction.

Step 8 – List Which Document Types Should Never Be Destroyed

Generally, you won’t want to destroy any original testamentary documents or vital records. Do not destroy documents or items that clearly belong to your client. Do not destroy information that could be useful to the client in a matter where the statute of limitation hasn’t expired.

Step 9 – Explain How to Contact Clients about Their Files

Before a file is destroyed, you should reach out to the client to make sure that they don’t want anything from it (or copies of it). Explain how contact should be made and whether the client is responsible for picking up the documents within a certain amount of time.

Step 10 – Explain How to Destroy a File

You should explain which file destruction methods are approved and how the file should be destroyed. Stress the importance of protecting client confidentiality during the destruction process. The file that was destroyed should be logged in a document meant to track retention and destruction.

To learn more about records retention and destruction, read Megan’s original post and check out her file retention and destruction policy example.

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