The end of 2017 is quickly coming. That makes it a great time to talk about document destruction. It’s important to understand why law firms need a document destruction policy in place and what it should cover. A document destruction policy determines whether a file should be kept in storage or if it can be destroyed. Its existence can even mean that a law firm gets a discount on malpractice insurance.
A document destruction policy is important for clients, too. It explains how long your office will retain a file from the very start of the case until the end of the storage requirement. It also explains to law office staff when and how clients should be contacted before the file is destroyed. This is important because it gives clients the opportunity to retrieve what they want from the file.
The Rules of Document Destruction
Before we discuss the basics of what belongs in a document destruction policy, it’s important that we address the professional rules that govern it. Of course, there are state rules. For the rules in your area, you need to do a little bit of research. This is imperative because you’ll learn how long you must keep files and other pertinent information.
In 1977, the ABA issued Informal Opinion 1384 which covered document destruction. This opinion stated that “Good common sense should provide answers to most questions that arise.” The Informal Opinion also gave valuable insight:
- Don’t destroy items that belong to the client
- Don’t destroy information that could be useful to the client in asserting a claim or defense where the statute of limitations hasn’t expired
- Don’t destroy information the client may not have in their possession
- Use discretion when determining how long to keep documents; especially consider the matter addressed and the material within the file
- Be extra cautious to maintain trust fund records
- Protect client confidentiality during the document destruction process
- Keep records of what is destroyed
ABA Model Rule 1.15(a) has been adopted by several states. This is important because Informal Opinion 1384 does not express a time period that lawyers should hold on to files. Rule 1.15(a) uses six years as a starting point. To learn more about the time periods, read Megan’s original post on Lawyerist.
What You Should Include in Your Document Destruction Policy
Now that you know where to find the rules related to document destruction, let’s cover the basics of your document destruction policy. As you read this you should keep in mind that the purpose of setting up this policy is to make analyzing older files and whether they should be destroyed easier. Since law offices often leave document destruction to non-attorney staff members, a formal document destruction policy helps take out the guess work.
Your policy should include:
- How files should be closed when a matter concludes
- How and where files are stored (hard copies, electronic copies, or both; explain the entire process from start to finish)
- A schedule of periodic review of stored files to determine when it is time to destroy files
- Designated individuals with authority to make destruction decisions (designated individuals should always be attorneys)
- Rules on which files should not be destroyed regardless of age (for instance, files with outstanding judgements)
- Types of documents that shouldn’t be destroyed (for example, originals of birth certificates or testamentary documents)
- How and when clients will be contacted about the impending destruction of the file(s)
- Approved methods of destruction
- How document destruction should be documented
Plan to Outsource Document Destruction?
If you plan to outsource your document destruction, make sure that you choose one without complaints filed against them. Also, make sure that your law office enters into a non-disclosure agreement with the vendor. Keep a copy of the NDA and verify that the documents you sent for destruction were, indeed, destroyed.