Preservation of Files Destroy or Not to Destroy

By Jay G. Foonberg

 

The purpose of this article is to encourage the reader to begin the process of file destruction at the earliest possible opportunity, from womb to tomb, from the beginning of a practice to the closing of a practice. File maintenance, closing, and destruction should be part of an in-place system in the law practice of every lawyer.

File destruction and file preservation are, of course, opposite sides of the same coin. For purposes of this article, the file process will be divided into three phases:

1. ‑The opening of a file. A file should be opened, at the very latest, when facts are obtained and/or professional responsibility commences.

2. ‑The closing of a file. A file should be “closed” when there is nothing more to be done on that matter. If there are any unpaid fees, the file should not be closed until a decision has been made to give up the claim for fees or until collection efforts are abandoned. If the file will require future work but not current work, it should be kept open.

3. ‑The destruction of the file. The file should be destroyed as soon as possible after the closing of the file—at the very latest, on the closing of the file plus a period of time as required by law to comply with local rules or statutes of limitations, if any.

A file should be opened and closed with the client’s understanding that eventual file disposal or destruction is part of the process. The proper closing of an active file will trigger and facilitate the subsequent destruction of the file.

Why Destroy the File?

A good file destruction system presents a win-win opportunity both for the law firm and the client as well as the successors in interest to the lawyer, the firm, and the client.

Possession of, and responsibility for, a closed file presents a storage, retrieval, and space occupancy problem for an active lawyer. Without a file closing and destruction system in place, the lawyer or firm becomes a permanent unpaid warehouse service or bailee for the file. Storage of old files costs money for rental space on an ongoing basis. An old file can cost many dollars in rental occupancy costs if it sits long enough.

A closed file also may present the problem of locating the client or making other disposition should the lawyer decide to sell the practice or close the practice, and it could present an even bigger problem for those who must close or transfer
the practice of a deceased or disabled lawyer—the family or executors of a deceased or disabled lawyer won’t have the lawyer’s memory to help them.

File destruction should begin long before file storage space becomes a problem or before a lawyer dies or a decision is made to close the office for any reason, especially retirement.

Defining “The File”

The definition of “the file” varies greatly from jurisdiction to jurisdiction.

We lawyers are accustomed to thinking of “the file” as being the paper contents with local rules variations distinguishing between:

• ‑Paper entirely in the handwriting of the lawyer.

• ‑Paper that has been mechanically printed or typed and which has handwritten notations of the lawyer on the paper.

• ‑Paper containing the results of legal research.

• ‑Paper prepared by or for the attorney containing the attorney’s “work product.”

• ‑Correspondence directed to the attorney or firm, or to or from a succession lawyer.

It comes as a shock to some lawyers (it did to me) that the definition of “the file” includes all information concerning the case, including all electronic data. Thus, when a client wants “his file” or the attorney wants to destroy the “the file,” the attorney may have to do a complete search on the current and former computer hard drives and backups in order to first find out what information the attorney has to either give to the client or to be destroyed.

Old Files, New Lawyers

Many states have a system of court-appointed receiverships to take possession of the client files and liquidate the practice if the lawyer is dead, disappeared, or incompetent.

Some bar associations have volunteer committees to take over and liquidate the practice of a deceased, incompetent, or disappeared attorney.

Some states have a successor attorney requirement wherein every lawyer is supposed to have a successor lawyer to assume the practice if the first lawyer becomes disabled. A lawyer who accepts the position of being a successor lawyer should insist on file destruction as a precondition of remaining a successor lawyer.

Closing the File

A file should be considered “closed” when all necessary work has been done, all fees and costs paid, and the contents will no longer be needed for future work by the firm.

You should go through the physical file page-by-page, piece-by-piece, to look for at least three specific types of items to be removed before closing the file.

1. ‑Items that are the property of the client. Common items would include deeds, mortgages, birth, marriage, and death certificates, citizenship certificates, photography, unused trial exhibits, any document with an original signature, or any other item of personal property belonging to the client.

2. ‑Items that have been misfiled and belong in another client’s file.

3. ‑Multiple copies of documents that are no longer needed.

Many firms purge electronic data that is no longer needed relative to the matter, such as electronic computer documents and billings, by scanning the data and transferring it onto a disk or other storage medium to get it out of the computer and into the closed file.

Implied Consent to Destruction

When a file is closed, I recommend an “implied consent” to destruction paragraph in the file closing letter or even a separate letter to the client. (See sidebar, “Implied Consent to Destruction Letter,” on page 39).

Note that this letter refers to a new numbering system for the file, which reflects the month, year, and date when the file was closed (e.g., 2007 12-12). The new numbering system will facilitate the file destruction process—all of the files closed in a given year should be stored together and can be destroyed in accordance with your local rules.

It is my opinion that a client who has received this letter and has taken no further action for 30 days has implicitly consented to the new closed file system, including the “destruction without further notice” provision. It is preferable, but not normally required, for the client to sign and return a copy of the letter. You might want to check this with your bar counsel.

Disposal of Files of Unlocatable Clients

When a file is closed, the lawyer normally has a then-current address for the client. The longer a lawyer waits to contact the client, the more difficult it is to find the client or determine the client’s successors in interest. Having to locate long-disappeared clients to get rid of their files is the nightmare of every lawyer. Clients change residences and names, making it difficult or impossible to locate the client. In some cases the “client” no longer exists owing to death or bankruptcy or other form of dissolution. There may or may not be a locatable successor in interest, or the successor may no longer be locatable. This leaves the attorney with client files and nowhere to send them.

The attorney or successor attorney has to make “reasonable” efforts to find the missing client. What constitutes “reasonable” is of course a question of fact under the circumstances. Internet searches or Google or other search engines are a good way to start. Sending mail to the last known address and saving the returned letters as proof that the client is “non-locatable” is also a good way to start. Sending letters to all contacts in the client file can be helpful. Depending on the economics involved, it may be worthwhile to hire a professional skip tracer or search organization. All the energy and money expended on these methods could probably be avoided by simply closing the file with an “implied consent” letter.

Some states have a system allowing a lawyer or executor to open a court file by filing a pleading, paying the filing fee, and then depositing the client documents with the court as exhibits that don’t get returned. This system is sometimes available only for wills and trusts and other financially operative documents. Where such a system exists, it is available for all lawyers admitted to practice in a specific court. This is a system that can easily overload the court, which might have to receive many boxes of files for a single filing, and for that reason often is not advertised.

General Observations Concerning File Destruction

The rules for file destruction are state specific and case-type specific. There is no general rule applicable to all jurisdictions or type of matter, nor necessarily any uniformity within a single state.

Cases involving minors, trust account transactions, guardianships, bonded attorney performance, insolvency, bankruptcy, probate, or criminal law may have special rules.

When no specific guidance is given in the rules, a good starting point would be to determine the statute of limitations for conversion of personal property or breach of written contract. This might be the period in which a client could sue for converting his or her file. This might or might not be the same period as the rules would have provided, had there been rules for breaching your written fee agreement.

Some lawyers destroy the paper file and preserve a digital copy of the contents by scanning or other process. These lawyers take a middle approach of destroying the paper file to reduce storage costs and replacing the paper file with an on-premises digital file. I see nothing wrong with converting a file from paper to digital to reduce on-premises storage costs, but it is my opinion that the file has not yet been destroyed and can still be obtained by subpoena or court order, in electronic form as well as in paper form.

There is a further problem of being able to read digital format information when the software or hardware needed to do so no longer exists. One can consider the plight of those lawyers who stored files on mag cards, 8-inch floppies, 5-inch floppies, 3-inch floppies, analog tapes, or other systems requiring programs or equipment no longer in existence to read the information electronically stored.

Destroying the File

There are several ways to destroy a file, depending on the risks a lawyer wishes to take and the costs involved.

1. ‑Dump the file in the office trash. This may be cheap but should never be done. The discarded file probably has lost all attorney-client privilege and becomes a finders-keeper situation. Once you put the file into a trash bin, you probably lose all rights of ownership. I recommend against doing this.

2. ‑Shred the file yourself. Shredding is the most common method of proper file destruction. The U.S. Department of Defense issues standards for the size of the shredded material. You should insist on a shredder that meets these standards. The vendor of the shredder should be able to provide you with current data. Get a powerful shredder that will accept and shred paper clips, cardboard, etc., to avoid spending time clearing jams in the shredder. The files marked for destruction should be accumulated and all shredded at the same time by the lowest-paid person available. The shredded file(s) can then safely be put into the office trash system.

3. ‑Hire door-to-door shredders. This is an expensive way to shred files on-site. Vendors offering this service typically operate from a truck that contains a shredder. They drive to your office and grind the files in the truck while parked outside your building. You will be invited to stand in the truck and watch your files being shredded so you can feel comfortable that they were, in fact, shredded. The shredder company may give you a certificate attesting to what was shredded.

4. ‑Sell your files to be destroyed for recycling. Depending on the going prices for paper, a file storage company may buy your old files for the value of the scrap paper. Paper used in offices is generally higher quality and can bring some good money into the firm’s
income. The company pays you a set amount per banker’s box of files and then hauls them away. The files are pulled apart on a conveyer belt to get rid of metal and other objects that are not supposed to be included in the recycled paper. The paper is then pulped into mush and added to the new paper being prepared. I personally have accompanied my files through this destruction process and feel comfortable that client confidence has not been violated. I recommend that you personally accompany some files through this system.

Non-Client Files

Although this article concerns itself primarily with the destruction of client files, there are other files, some client related and some not, that also must be destroyed.

Financial information no longer needed should be destroyed as soon as possible. Financial information containing client identity (e.g., old client billing or time records) must be destroyed in such a way that client identity is not disclosed.

Other financial records with expired income tax or other statute of limitations should be gotten rid of as well.

Old bank records and canceled checks should be given special attention both to protect client identity and to prevent identity theft.

Trust account records in some jurisdiction should never be destroyed.

 

Implied Consent to Destruction Letter

 

Dear [Client name]:

 

We have concluded our services in the matter of                        . [describe matter] All legal work has been done and all your fees and costs have been paid.

 

We thank you for the opportunity to have been of service: We are including a questionnaire to enable you to express your opinion of our services.

 

We have examined your file and we do not now have in our possession any original documents or items that belong to you. If you are aware of anything we may have that you want, please let us know immediately so that we may send it to you. We have previously sent to you [or, as appropriate, the letter can alternatively state, “We are sending under separate cover” or “We are enclosing”]: _________. [describe materials]

 

We have endeavored to send you copies of everything that has happened on your matter and accordingly you have a file that duplicates our file. Please note that we have renumbered your file to indicate the month and year in which it was closed and are moving the file to our closed file storage area where it may be destroyed without further notice to you. Retrieval of the closed file or its contents prior to its destruction may require delay as well as a waiting period and charges for the service.

 

Again, please let us know if there is anything that you want from the file. If we do not hear from you within 30 days, we shall assume you have anything you might want or need and that you understand our closing, retrieval, and destruction system.

 

A new file number has been assigned to this one file only. The new file number is 2007 12-12.

 

It would be appreciated if you sign a copy of this letter acknowledging its receipt and your new file number of 2007 12-12.

 

Very truly yours,

 

______________________

[Your name]

 

______________________

[Client name]

 

Enclosure: Client satisfaction survey card

Copy of this letter

Self-addressed postage-paid envelope 

 

 

Jay G. Foonberg is the Law Practice Management Section Council Liaison to the GP|Solo Division Council. He is a founder of both the Law Practice Management Section and the GP|Solo Division. He has been honored with the GP|Solo Division Donald Riklis Award for lifetime services to the solo and small firm lawyers of America, and also the Law Practice Management Section’s Sam Smith Award for lifetime achievements in the field of law practice management. He may be contacted through www.foonberglaw.com. This article will appear in The Lawyer’s Guide to Buying, Merging, or Selling a Law Office, to be published by the American Bar Association this fall. Article copyright © 2007, Jay G. Foonberg. All Rights Reserved. Reprinted with the permission of the author.

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