P R O B A T E   &   P R O P E R T Y
July/August 2004
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Department

Technology - Probate

Technology—Probate Editor: Daniel B. Evans, P.O. Box 27370, Philadelphia, PA 19118; dan@evans-legal.com.

Technology—Probate provides information on current technology and microcomputer software of interest in the probate and estate planning areas. The editors of Probate & Property welcome information and suggestions from readers.

 

Closing the File

Once the wills and trusts have been signed, the estate or trust has been distributed, and the final bill has been paid, lawyers and their staffs will want to “close the file,” transferring the paper file from the file cabinets in their offices to either on-site or off-site storage (or perhaps destroying some or all of the paper records). Regardless of how the paper file is handled, there should be a procedure for “closing” all electronic files as well, either deleting them or archiving those electronic files by removing them from the active computer directories and transferring them to an archival directory, tape, CD-R, or other separate storage medium.

This kind of “electronic file closing” has two benefits. One benefit is that it reduces the clutter in the firm’s computers. It is both annoying and time-consuming to be looking for information for a current client and have to work around or through files and subdirectories of former clients. The other benefit is that all of the information about the completed matter will be collected in one spot and can be retrieved if it is ever needed. For an estate planning client, there may be a need for new wills or other documents in the future, and it is often easier to work with the old word processing documents without having to create new documents from scratch. Similarly, it may be easier to update estate tax calculations starting from the old data than to create new calculations, especially if the calculations are in the form of spreadsheets. For estates or trusts that have terminated, questions sometimes arise about the income tax basis of assets or other details about the distributions, and having the records available in electronic form can be easier and faster than looking through the paper files. And then there is the possibility of a malpractice claim, for which electronic records may be helpful.

One of the problems with electronic archives is that any document or data that is saved in a particular electronic format might become useless if the software that was used to create the document or record is revised by the vendor or no longer used by the firm. So, for example, a will or trust that was created in the word processing program the firm is using now may become completely unreadable in the upgraded version of the same word processing program released five years from now. Or billing information that is archived today may become useless when the firm switches to a different billing system in two years. So it may be desirable to save documents and records in relatively generic or stable formats, such as Adobe’s “portable document format” (or “PDF”) for documents or a “field delimited” file format for databases.

Exactly how each firm should deal with different types of electronic records depends to a great extent on the kinds of programs used in the firm, but the following suggestions may be helpful.

Document Management Software

If the firm is using any “document management” programs, such as Worldox, iManage, or DocsOpen, then file closing should be much easier, but only if the firm is using the program to the fullest. This means using the software to organize as many different types of electronic documents as possible, not just word processing files, but also spreadsheets, e-mails, and electronic images (such as faxes and scanned documents). Document management programs can also be configured to require the user to select a client or matter code for a document when it is saved, so that it is easier to locate all of the documents for a particular client regardless of where the documents are saved. Document management programs also simplify the file closing process by providing tools that make it easier and faster to move or archive the documents in a particular file or related to a particular client.

Client Directories

Regardless of whether or not the firm is using document management software, the electronic file closing process is a lot easier if all client documents are kept to the greatest extent possible in a separate directory (or “folder”) for each client or matter (if some clients have more than one separate paper file because of multiple matters for that client). This can require some work in configuring software (and training lawyers and secretaries), because most programs by default will save files in a directory that is separate from the directories of all other programs, but the effort to keep documents organized by client/matter will usually be worth it in the long run.

Client Documents

Although the “bread and butter” of most law firms will be the letters, memos, wills, trusts, and other documents created (and saved) as word processing files, there may be other electronic files, such as spreadsheets, PowerPoint presentations, and data files for estate planning calculation software, among others, that contain information, calculations, communications, or presentations for the client. All these client-related documents should be archived together when the client file is closed.

Faxes, Scans, and Other Images

Many firms now receive “faxes” through the Internet or through fax servers that save an image of the fax as an electronic file instead of (or in addition to) printing the fax to paper. Many other firms scan all incoming documents (whether papers received through the mail or faxes) so that there is an electronic record of all incoming correspondence.

There are similar advantages to keeping an electronic record of all outgoing correspondence as well, so that there are images on file of (for example) an outgoing letter and all of its enclosures, tax returns, or accountings as they were filed. As explained in an earlier column, the Adobe Acrobat program can be used to create “portable document format” files out of both word processing documents and scanned documents, so that images of both incoming and outgoing documents can be saved in a stable and commonly used format. See “PDF for Lawyers,” March/April 2003, at 51.

Regardless of the format of the PDF or image files, they should all be saved to the client directory, and when the client file is closed, those faxes, incoming correspondence, outgoing correspondence, tax returns, accounts, pleadings, and other document images should be archived along with all other electronic documents relating to that client.

E-mails

If there has been e-mail correspondence by or about a client, those
e-mails should be saved with the client’s electronic file. There are several different ways to do this.

The e-mail program itself should be able to save e-mail messages to a separate file in the client directory. Saving a message in this way is usually desirable from a records point of view because the message will be saved in the same form it was received, as a text file with header information showing how and when the message arrived through the Internet. If there are questions about the message in the future, the message can be opened and viewed as an e-mail message just as before, or it can be opened and viewed as a text file (which may not be as readable if the e-mail message used HTML or other formatting).

If the firm uses Adobe Acrobat for file archiving and other purposes, e-mails can be “printed” and saved as a PDF file. In that case, the firm will have an archive in the same form as a printed e-mail message (with only some of the header information).

But rather than wait until a file is closed to archive old e-mails, it may be better to have a regular procedure for saving client e-mails as they are read and answered (or forwarded, printed, or otherwise dealt with). Or it may be possible to set up a “rule” or “filter” that will automatically save client e-mails to the appropriate directory as the e-mails are sent or received (assuming that e-mails for a particular client can be identified by the e-mail addresses, subject line, or other information in the header), so that little or no effort is required by lawyers or staff.

Case Management Events

Generally speaking, case management programs, such as Amicus Attorney or Time Matters, work as large databases with records for different clients mixed up together, so that there is no separate electronic file for any particular client. Firms that use these programs, however, should realize that they contain valuable information, such as notes of telephone conversations, dates and times of meetings, and descriptions of time spent, and that this kind of event information should be archived with the client’s file if
possible.

One fairly simple solution is to “print” a file chronology that includes information about telephone calls, time recorded, and other events recorded for a client in the case management system. The file chronology is usually generated as a word processing (or PDF) file so it can be saved in the client directory and archived along with the other client documents.

When a file is closed, the file and client should also be marked as “inactive” or “closed” in the case management system, so that their names will not appear when searching or selecting current files and clients. In most cases, the information is still in the case management database and still accessible, just not as visible. This means that it is still possible to find information about an estate planning client if, for example, an inactive client should suddenly call and ask a question about something that was done several years before.

For clients that have died and estates that have been closed, so that it is fairly certain that there is no reason to ever consult the file again (at least, once the statute of limitations for malpractice has passed), it may be possible to either archive (that is, export to a separate file) or purge (delete) all of the event information related to that client/matter.

Billing Records

Before closing a file, a final bill should be generated so that any unbillable time is written off and all fees collected are applied to the accounts receivable. Because bills often have useful information about what was done, when, and by whom, it might also be useful to “print” either each separate bill or a consolidated statement of all time that was spent to a PDF or other electronic file that can be saved with the other client documents. (Which may or may not be possible. Some billing programs keep only a limited number of bills available after they have been issued, while other programs allow re-creating any number of past bills.)

What happens after that depends on the billing software used. Some programs have ways of “closing” a billing matter or making it inactive, so that it does not show up on the current client list, while other programs will “purge” the historical records so that the details of the time records that have been billed are either archived or deleted.

Conclusion

Every firm (including solo practitioners) should have a “file closing” checklist to make sure that, when a matter is completed, both the paper file and all of the electronic records relating to that file can be collected and either deleted or archived in a way that will make them accessible in the future. The exact procedures will depend on the different kinds of programs used by the firm, how those programs are used, and what kinds of records should be kept and for how long (which will depend on the nature of the case and the documents and records created by the firm), so some forethought and planning will be needed.

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