Standards for the Provision of Civil Legal Aid

Standard 5.3 on Maintenance of Records

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Standard

A provider should have internal file maintenance and calendaring systems to help manage its legal work, note important deadlines, check for potential conflicts of interest and properly account for client trust funds.

Commentary

General considerations

A legal aid provider should have a system for keeping track of all its legal work. In particular, the provider should have a case management system that tracks its cases and preserves data regarding clients and activities undertaken on their behalf, as well as information on their adversaries. For providers that serve large number of clients, perform a high volume of legal work and face periodic staff turnover, it is essential to have systems that assure continuity in recording and retaining case information and facilitate its retrieval. Such systems should assist the provider in avoiding unnecessary paperwork and disruption of legal work. The exact nature of the systems adopted to meet the Standard may vary widely based on the needs, resources and structure of the provider, as well as applicable ethical rules and requirements of funders.

Providers commonly use computer and web-based case management systems. These systems offer providers and their practitioners simple tools to keep track of case information, deadlines and conflicts of interest. They may also be coordinated with timekeeping, accounting, personnel records systems and client trust accounts to ensure accountability in the use of program and client resources.

Although electronically based systems may be particularly beneficial in large offices where the scale of practice and available resources are greater, even the smallest providers will benefit by incorporating technology into their operations. The cost of such technology continues to decline and is within reach of virtually all providers. Each provider should familiarize itself with technological advances and incorporate appropriate technology into its operations when it is cost-effective to do so and will increase the provider's efficiency and expand its capacity.

The systems required by a provider that uses staff practitioners will differ significantly from those required for a provider that relies exclusively or substantially on outside practitioners to represent clients. Where representation is provided primarily by staff practitioners, the provider has significantly greater responsibility for developing and implementing systems that cover all the areas that are addressed by this Standard. To the extent that representation is provided by outside practitioners, the provider's record keeping system should, at a minimum, be sufficient for it to maintain accurate records of referrals and their disposition, to provide statistical data necessary for its own management needs, and to meet any reporting requirements of its funding sources.

An efficient system for maintaining client files

The provider should have a case management system that facilitates easy location and speedy retrieval of files for its cases, whether they are maintained electronically or in hard copy. The exact nature of such systems will vary based on such factors as the number and size of the provider's offices, and the organization of the provider's staff. Computer and web-based case management systems have become common and are economically feasible for even those providers with small staffs and limited resources. They enhance the provider's operations in innumerable ways, including the following:

  • Supporting and simplifying the provider's intake process;
  • Providing for contemporaneous entry of case notes;
  • Reducing paperwork and the need for storage space for paper files;
  • Keeping track of case and client information;
  • Monitoring deadlines and maintaining tickler systems;
  • Checking for conflicts of interest;
  • Permitting sharing of case and client data among the members of the provider’s staff;
  • Supporting staff supervision, including off-site supervision;
  • Supporting timekeeping;
  • Recording contact information;
  • Providing systems for calendaring, including office-wide and provider-wide calendars;
  • Keeping track of, supporting and following up on referral;
  • Tracking recurring legal issues;
  • Generating reports for provider's management and outside funding sources.

In addition to the initial costs for software and hardware upgrades that may be necessary to implement an electronic case management system, there is a need for staff training, both initially and on an ongoing basis, to ensure that all staff can fully and effectively use the system, including the contemporaneously entry of case notes and timekeeping data.

The system for opening electronic case files should produce accurate, current, and easily accessible records for all clients. It should allow the practitioner and other personnel to quickly locate those case files that are pertinent to specific clients and to automatically check for potential conflicts of interest.

The extent to which a provider should maintain separate files for persons referred to outside practitioners depends upon the degree to which it retains responsibility for the conduct of the representation, and regularly collects information regarding the progress of the matter.

Client case files should be distinguished from intake records for applicants for service who do not become clients but receive some form of non-representational assistance as well as those who are turned away with no assistance at all. Information obtained at intake is subject to the same protections from unauthorized disclosure as information provided by clients accepted for representation and can give rise to a conflict of interest, even though the individual was not represented.

The provider should be aware of the ethical rules in its jurisdiction regarding prospective clients. It should have policies regarding the level of information obtained from applicants at the outset and the maintenance of records relating to those who are not accepted as clients in order to address concerns relating to conflicts of interest and potential malpractice claims. Providers should be mindful of the need not to create avoidable conflicts of interest, and should not collect or retain more information than is reasonably necessary to determine whether to represent the prospective client.

When client files are closed, they should be reviewed and evaluated, and a case closing memorandum should be prepared to summarize succinctly the outcome of the case, and to identify case closure and other information that needs to be recorded in the electronic case management system or other appropriate place.

The provider's case management system should be designed to assure that closed files are retained to the extent necessary and that they are reasonably accessible. The provider should develop standards and procedures for the disposal or archiving of unnecessary materials in closed files and for the return of clients' personal documents. The closed file should include sufficient material to assure that an individual reviewing the file can accurately and completely reconstruct the case.

The provider should develop additional internal standards for storage and disposal of paper files and the archiving of electronic files where there is little likelihood of further need for the file. Stored paper files should contain only critical information and documents. Standards for closed and archived files should take into consideration federal, state, and local rules on maintenance of records, requirements of funders, the statute of limita­tions for malpractice or any other action that might be filed in relation to a particular case. The provider should keep files accessible in cases that by their nature may continue to have significance over a long period of time.

The provider should have a policy, which comports with the law in its jurisdiction, regarding the disposition of closed files in the event of the discontinuance of the provider's program. Consistent with the provider's ethical obligations, a provider that is terminating its operations should notify its clients, provide for completion of ongoing representation and return all important documents to clients, if possible. Provision should be made for storage or appropriate disposal of all files that cannot be returned to the client. Custody of closed files may be transferred by agreement to a responsible institution such as another legal aid provider or a bar association.

A system for noting and meeting deadlines in the representation

The provider should have a docket control and tickler system to assure that its staff practitioners meet all deadlines and scheduled appearances. The system should have the capacity to notify both the practitioner and pertinent office staff of all important dates and deadlines and identify any conflicts in scheduling.

Most of the provider's practitioners handle a number of individual cases, and even the most diligent may overlook an important action that must be taken in a particular case. The tickler system should regularly remind the practitioner of key planned activity in a case so that the adopted strategy is implemented according to the proposed timetable, and so that appropriate contact is maintained with the client. Technology offers a wide variety of efficient docket control and tickler systems. Many of these systems are incorporated into the comprehensive case management systems used by many providers.

Outside practitioners representing clients referred by the provider should generally maintain docket control and tickler systems in conformance with the established procedures of their firms. Outside practitioners or law firms that represent a large number of clients under contract with a provider may find that it is efficient to participate in the provider’s docket control system.

A system for handling client trust funds

A provider may not commingle funds that belong to a client with its own funds. In accordance with the client trust fund rules of its jurisdiction, the provider should establish separate trust funds for money received from or on behalf of clients that may include such things as filing fees, funds deposited by a client toward possible settlement, or funds received from an adversary for payment to a client. The provider should participate in the Interest on Lawyer Trust Account program that exists in each state.

The provider should maintain records of all client funds that provide immediate and accurate information on the amount held and expenditures made to and on behalf of each client. A provider should have a system to ensure that all client funds held by the provider are returned to the client if appropriate. Providers should take into consideration applicable state laws regarding the disposition of funds that cannot be returned because the client cannot be located. Costs paid by a provider on behalf of a client should be paid from the provider's budget, and should never be paid from funds held in trust for other clients.