The rules of professional responsibility governing attorneys typically do not set forth well-defined guidelines pertaining to document retention and document destruction. As a result, there is leeway in regard to how and when a law firm disposes of documents, provided specific obligations under the rules of professional responsibility are otherwise satisfied.
Because of the diffuse nature of guidelines associated with document retention and document destruction, individual law firms at times have elected to develop their own policies for document retention and disposal practices. This is proving to be a challenging task for many law firms.
In contemplating a policy regarding document retention and document destruction, a law firm needs to pay particular attention to three primary considerations. These are client confidentiality, putting a policy in writing, and discerning between different disposal methods.
One of the most crucial tasks of an attorney is to maintain client confidentiality. The obligation to maintain client confidentiality extends to the manner in which a law firm disposes of documents associated with the representation of a client.
Document destruction guidelines must include specific standards regarding precisely how client confidentiality will be maintained when documents are marked for destruction. In other words, document destruction must be undertaken in such a manner that the process thoroughly protects a client’s confidentiality. This can mean deep shredding or even incineration of documents.
One of the ways in which a law firm falls short in developing a policy for document disposal is failing to put it in writing. Yes, law firms, like laypeople, fail to memorialize things in writing with some surprising regularity.
The reality is that the issue of document disposal may come up for discussion in a firm meeting. A general consensus is reached between meeting participants and something of an ad hoc document disposal policy verbally is created. However, the policy is never committed to writing.
Developing a written policy regarding document retention and disposal provides clear guidelines to a law firm’s staff. Moreover, it provides documentation supporting the establishment of an appropriate procedure should a question ever arise about the manner in which a law firm is addressing document retention and disposal.
Different Retention and Disposal Methodologies
A one size fits all types of documents policy will not work when it comes to a law firm and a retention-disposal regimen. A law firm likely maintains an array of different types of documents on behalf of clients. These include original documents, including wills, trust agreements, and the like.
These types of original documents should be maintained indefinitely by a law firm or conveyed to the client. If the client prefers the document remain in the custody of the law firm, the firm must maintain it indefinitely until the legal necessity for it ceases to exist.
Other types of documents can be subject to a law firm’s established disposal practices, provided all specific legal obligations associated with certain documents are satisfied. Even when these types of documents are earmarked for destruction, contacting the client and inquiring if the client wants the documents should occur before disposal is initiated.