Documenting File Destruction

Are you documenting your file destruction based on record retention requirements? Depending on the number of variables there are several methods to make sure that you have the necessary information to verify what has been destroyed and when.

How Long Do I Have to Keep Client Files?

As is the case with so many things having to do with the law, how long you need to keep client files depends on circumstances. You also have retention for your firm’s business records. This article: “Rock, Paper, Scissors: Shredding Options for Old Files ” provides some guidance on record retention and the “how” of file destruction considerations.

Do I Need to Document the File Destruction?

Yes. When you have determined that a file can and should be destroyed,?NC RPC 209 (Disposing of Closed Client Files) ?states “A record should be maintained of all destroyed client files. RPC 16.”?RPC 16 ?states: “Generally, attorneys should also retain accounts or records of their receipts or disbursements and an index or identification of destroyed files.”

Client File Retention and Destruction Policy

To holistically keep up with your duties on file retention and destruction, firms should have a policy in place. If your firm does not have an existing policy, there is good news because there are plenty of sample policies to leverage when creating or updating your own. NC Lawyer’s Mutual has an excellent guide – “File Management: Retention and Destruction ” which includes file set up for physical and electronic files, file storage considerations, destruction methods, a case file closing form, file closing checklist, and a sample retention policy.

File Closing Procedures

Part of your file retention and destruction policy should include a procedure that details how files are closed, how to track and trigger retention periods for review and destruction, how to document closing a file, and where closed files are kept. At the close of a matter firms should follow a checklist to make sure:

• The final bill is sent, and client documents returned.
• Systems (law practice management, document management, spreadsheet, time/billing, accounting, paper files) are updated to note the matter is closed.
• Retention is triggered from the retention schedule, and a tickler is set for review and file destruction.
• Notes on the types of files kept, what format they are in, and where they are stored are documented.

If you firm does not have a retention schedule or records management plan, there are excellent examples from the?New York State Bar Association , the?Alabama State Bar ,?CNA ,?Zavieh Law ?and an example from Canadian law firm?Cohen Highley . Keep North Carolina’s specific rules and requirements in mind when creating your plans and policies.

Documentation of File Destruction

Once the triggering date for file destruction occurs you should have a procedure in place such as:

• Staff pulls file.
• Review any open matters with client (if they exist).
• Send file to the attorney for final review.
• Attorney approves file destruction.
• Files destroyed.
• Destruction documented.

When a file is destroyed you should document information such as “(1) a record of the attorney in charge of reviewing the file’s approval of file destruction and (2) verification from the service or individual who performed the file destruction that such destruction was carried out. Such records shall include the date, location and method of destruction employed” (Sample Document Destruction Policy ? Zavieh Law ) plus the name and address of the client, the file number, a brief description of the matter, and the file closure date (File_Management_Retention_and_Destruction) . This information should be retained indefinitely.

How you document the details of the file destruction depends on your systems. If you are using a practice management system (like PC Law or Clio or other) or a time keeping product like (Bill4Time or Timesolv or other), you may be able to record the destruction details in the closed client record. Or you may choose to maintain a spreadsheet with the destruction information. You could also create a fillable form and when the file is destroyed you can fill it out and save or print it for safekeeping. Because firms do migrate from one system to another, it may be best to create a note in the system and keep a document in the firm’s permanent files.

File Destruction

If the file is paper you can shred it or otherwise destroy it as per the?NC rules . For electronic files it depends on where they are stored (physical media like a disc, on a server, in the cloud) and what format they are in (.pdf, .wpd, .docx, .eml, .html, etc.) and whether information is in a database such as a document management, practice management or time/billing application. With digital files it is often the case that it is not simply a matter of hitting the “delete” key.?If you need to truly destroy a digital file there are tools that can “shred” digital records, wipe or overwrite drives, or destroy them physically. Talk to your IT professional or a?data storage professional ?to determine what will work based on your criteria.

Closing the Client Portal

If your firm offers shared files or a client portal, Jim Calloway at the Oklahoma Bar Association offers some advice on how to incorporate?closing the portal ?as part of the file closing process. He suggests that in addition to telling clients how files will be handled at the end of representation, the engagement agreement can also clarify how long a client portal or file sharing repository will be available.

Conclusion

Having a clear file closing procedure, a retention schedule, a destruction policy, and documentation are not only essential tools from an ethics perspective, but they are also a great part of your firm’s succession plan. Firms that keep files “forever” and do not indicate which files are closed are leaving a complex mess for any successors or themselves when they decide to retire.

This blog was written by?Catherine Reach ?and originally published on From the Center Blog. Access more from the?Center for Practice Management .