My Office File Retention / Document Destruction Policy
Definitions
Retention Period: The period of time following the closing of the matter (active to inactive status) until its final disposition.
Disposition: The final action taken during the life cycle of the record within this office including:
1. Destruction;
2. Transfer to vital record status;
3. Transfer to the client;
4. Transfer to third-party (such as another lawyer or law firm);
5. Permanent retention.
Vital Record: Any record that must receive the highest level of protection because of its necessity to protect the interests of the lawyer or the firm and essential to the resumption of business. These records must be secured in a destruction proof environment such as a fire proof safe or vault.
Retention Guidelines
1) File Closing: A client file shall be reviewed by the lawyer before being closed and prepared for storage. Closing of a file should be in accordance with a prescribed written policy which should consider the following factors:
a) No file shall be closed and scheduled for destruction under a retention schedule until all matters relating to the resolution of all matters relating to the representation have occurred as follows :
i) All Matters : Discharge by client or withdrawal from representation by firm.
ii) Adjudication/Disposition : Final Adjudication and/or Disposition of the case, including any periods of expiration, appeal, motions to reopen/reconsider, or other foreseeable government action. (file shall be kept for no less than seven (7) years).
b) A file cannot be closed until all outstanding fees are paid client or otherwise discharged with consent of the firm.
c) A file cannot be closed until there is a final distribution and accounting of all trust account balances relating to the file.
d) A file cannot be closed until the responsible attorney examines the file to identify all client property and that client property has been returned to the client or is stored as a vital record, if necessary. Included in this category are such personal documents as tax records, expense records, bank records, deeds, corporate documents, etc.
e) At the discretion of the lawyer, the file can be culled of unnecessary material:
i) Legal memoranda, briefs, pleadings, and other documents that can be reproduced from other sources.
ii) Drafts of documents otherwise preserved in final form unless the process of creating the final document might later be an issue. Marked-up copies are often useful in the event questions later arise
iii) Notes and memoranda recording nonpublic information regarding a client or its adversary can be destroyed.
iv) Copies of published opinions and other available published material.
v) Duplicate documents.
vi) Depositions may be culled particularly if electronic transcriptions are available.
vii) Extraneous material such as scratch pads, legal pads, and paper clips.
2) All files shall be maintained in storage for a minimum of seven (7) years beyond the closing date of the file.
a) In addition to electronic files/archives, physical closed files will be stored:
i) On-site for at least the first two (2) years after closing.
ii) Possibly Off-site after the first two (2) years after closing.
b) Storage facilities:
i) Must be physically secure to protect client confidences.
ii) Must be reasonably safe from environmental factors such as wetness.
Destruction Guidelines
1) After a minimum of seven (7) years files may be reviewed by an attorney for possible destruction.
2) No file may be destroyed until it has been reviewed individually by an attorney and found suitable for destruction.
a) Any client property found in the file must be returned to the client, or client given the option to consent to its destruction.
b) The attorney shall exercise professional judgment in determining whether a particular file is suitable for destruction erring on the side of retaining the file if there is any reason why the file may be needed in the future. Those reasons include, but are not limited to:
i) The statute of limitation for malpractice claims has been tolled or has not yet run.
ii) The file involved a troublesome client or outcome.
iii) The file involved an area of law or cause of action where either for substantive reasons or client relations reasons, information in the file may be needed in the future. These include, but are not limited to:
(1) Unsatisfied Judgments or Collections : File must be retained until judgment is satisfied or can no longer be renewed allowing time for the malpractice statute of limitation to pass after judgment can no longer be renewed.
(2) Immigration law: files should be retained for the life of the case, plus a minimum of seven (7) years after a final disposition/adjudication, and exhaustion of legal remedies available.
(3) Estate planning : Files should be retained permanently, including: wills and trusts; pension and profit sharing plans; and tax files; all of which should be treated as vital documents.
(9) Certain documents need to be retained permanently if not returned to the client:
(a) recorded deeds;
(b) accountants’ audit reports;
(c) tax returns (including all related documents and worksheets);
(d) year end financial statements and depreciation schedules;
(e) accounting journals;
(f) bills of sale (for important purchases)
(g) minute books, bylaws, and certificates of incorporation;
(h) capital stock and bond records dealing with capital structure;
(i) insurance policies and records;
(j) property records and property appraisals;
(k) copyright and trademark registrations;
(l) patents and all related documents and correspondence;
(m) major contracts and leases;
(n) actuarial reports;
(o) original government-issued notices.
3) Before any file is destroyed, the client is to be informed of the pending destruction and given opportunity to object and personally retain the file:
a) A letter will be sent to the client stating that:
i) The firm is happy to have been of service to the client in the past.
ii) The length of time the file has been held.
iii) In accordance with firm policy, files held longer than seven (7) years will be destroyed.
iv) The client may obtain the file if desired.
v) The file is schedule for destruction 90-days after the date the letter is mailed.
vi) If the firm has not heard back from the client, the firm will assume that the client has no objections to destruction of the file.
vii) If the client has any further legal issues, the firm would be happy to be of further service.
b) The notification will initially be attempted via email, then by postal letter, sent by first-class mail.
c) Disposition of files by response to email or letter:
i) If email or letter returns undelivered – retain file permanently.
ii) If client consents, or there is no response within 30-days, – file may be destroyed.
iii) If client desires the file: (1) A copy of file should be made and retained. (2) The original file must be sent to the client. (lawyer may retain electronic copy or archive).
4) The responsible lawyer must affirmatively give final approval for destruction of a client file or related documents. The lawyer should sign an appropriate destruction authorization form that should be retained as a permanent record.
5) A permanent list or database of destroyed files must be kept.
6) Destruction must be accomplished in a manner that preserves client confidences. These would include shredding, pulping, or any other method that destroys media beyond reconstruction in an environmentally sound manner. The person or service performing the destruction should certify, on the authorization form, the date, location, and method used and do so under a formal non-disclosure agreement binding the company and its employees.