Retention of Legal Firm files
Despite being a leader and a subject authority in RECORDS MANAGEMENT DOMAIN, what we present in this guideline is not necessarily going to be a binding position in as far as retention of files in your organisation is concerned. It is therefore important that you check on the statutory position in as far as records retention is concerned. This advice is more critical in the areas of statutory records that are mandatory for every business or organisation.
That not withstanding, this guide is going to be a very useful guide to those law practing organizations that do not have a records retention policy:
•Time Savings : When inactive records are periodically removed from file cabinets and hard drives, searching for information in the remaining records takes less time.
•Reduced Uncertainty : Reliable, easy to find, guidance on disposition of records allows staff to take informed and confident action when managing records. Records are not stored long after their useful life “just in case” or “because I might get in trouble if it isn’t here.” Knowing what records exist and what offices are responsible for maintaining those records makes access to information simpler, faster, and more reliable.
•Space Savings : When inactive records are periodically removed from active work areas, less space and equipment are needed for storage. More space can be used by people to do work and less to store unneeded records. Departments developing imaging programs do not waste resources scanning records whose usefulness has expired.
- Cost Reductions : Containing the growth of records reduces the cost of labor to manage records and the cost of servers and file cabinets to store records.
- Reduced Risk : When destruction of records is done systematically according to disposition schedules, the University is assured of being in compliance with statutory and regulatory requirements. Records essential to efficient operation are identified and protected as long as they are needed.
- Reliable Institutional Memory : Records of long-term value are identified, permanently preserved, and accessible.
Legal Files 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 as follows:
i) All Matters: Discharge by client or withdrawal from representation by firm.
ii) Litigation: Satisfaction of judgment. Final dismissal of action because of settlement or exhaustion or abandonment, with client consent, of all appellate options.
iii) Bankruptcy claims and filings: Discharge or debtor payment of claim or discharge of trustee or receiver.
iv) Dissolution of marriage: Final judgment or dismissal of action, or date upon which marital settlement agreement is no longer effective, except when minor child custody is involved in which event the date of the last minor child’s reaching majority.
v) Probate claims and estate administration: Acceptance of final accounting.
vi) Tort claims: Final judgment or dismissal of action except when minor involved, in which event the date of such minor reaching majority.
vii) Real estate transactions: Settlement date, judgment or foreclosure, or other completion of matter.
viii) Leases. Termination of lease.
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 ten (10) years beyond the closing date of the file.
a) Closed files will be stored:
i) On-site for the first two (2) years after closing.
ii) 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.
c) Off-site storage is [Name & Address of storage facility]