Attorney-Dumpster Confidentiality: Don't Save Email For Judgment Day!

Everyone knows that attorneys have to save client files. ABA Model Rule 1.15(a) says 5 years, many states say 6 or 7, etc. Some industries and government agencies require different periods. But what about all of the non-client files an attorney accrues?

We are professionals of paper (or now the digital equivalent). We are mocked for the "legal pad" which is 3-inches longer than normal people need and make a twisted form of art out of the CYA email. It is only natural to want to save everything but when the legal malpractice suit comes in, you (or at least your defense counsel) will wish you had a better records retention policy.

Most firms use an "affirmative save" approach to documents - the user has to actively save a document to the client file. Generally a great approach but unfortunately the non-client file material is often overlooked. At best, email retention is usually only addressed from an IT/cost-saving perspective not a directly risk management angle.

No one saves hard copies of years of unsolicited mailings, invitations to events, periodicals or scams from Nigerian Princes but for many lawyers, a strategic, firm-wide email retention policy is too daunting. The concern, of course, is that someone won't affirmatively save the key document that will be needed 15 years from now but the reality is far different.

When the claim (and the eDiscovery Order) comes, it is going to cost hundreds of thousands of dollars or more in attorney time and eDiscovery vendor fees to review and sort all of the materials you did not have to save. By proactively setting a reasonable email retention policy you not only protect your firm but also motivate your team to actually save documents to the file. If emails last forever or delete years later, people are much less likely to take the extra (non-billable) step to save them. Also, if you really need that smoking gun email, it can almost always be recovered - for a price (a steep price but likely cheaper than sorting through millions of unnecessary documents).

While firm and practice area specific, generally speaking, I recommend a firm-wide 3 or 6 month email retention policy. What does your firm do?