Risk Update

Law Firm Mobility Risk — Moving Offices or Downsizing? Don’t Ignore Information Governance (Documents, Disposition, and Destruction)

Dentons Partners Shari L. Klevens and Alanna Clair remind us: “Watch Out for Risks When Moving Offices” —

  • “As the practice of law adjusts to a post-pandemic world, many firms are evaluating their current office space and the lasting impact of the sudden transition to work-from-home over the last year. Because of anticipated changes to the office environment, some firms may look elsewhere for an office that better suits their needs.”
  • “But a successful move requires overcoming numerous logistical challenges. Law firms may view the move as an opportunity to ‘clean house’ by discarding old or seemingly unneeded files that do nothing more than take up space. However, the decision to destroy files can be complex and may implicate the ethical obligations attorneys owe to their clients.”
  • “If documents needed to protect client interests have been destroyed, the law firm risks not only the ability to defend against a legal malpractice claim brought by that client, but also may receive a bar grievance or other complaint for failing to take the steps necessary to surrender papers and property to which the client is entitled.”
  • “This typically does not require law firms to maintain all records and papers indefinitely, however. Law firms can consider the costs associated with storing old files. For every law firm, the level of risk the firm is willing to take when disposing of old files versus the price it is willing to spend to keep them in storage will vary; there is rarely a one-size-fits-all solution to this issue.”
  • “Generally, documents from closed files can be divided into three categories. The first category is documents, such as originals, that have special legal significance (wills, leases, contracts, etc.)… The second category includes documents subject to a “litigation hold” … The third category encompasses nearly all other documents… Those documents can be retained for the number of years required by state bar rules or until the statute of limitations for any legal malpractice claims has lapsed, whichever is greater.”
  • “The ABA, in Informal Opinion 1384, identifies some additional considerations for attorneys deciding how long to hold onto materials or documents.”

ABA INFORMAL OPINION 1384: GUIDELINES FOR CLIENT FILE RETENTION/DISPOSITION —

  • “Unless the client consents, a lawyer should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or on behalf of the client, the return of which could reasonably be expected by the client, and original documents (especially when not filed or recorded in the public records).”
  • “A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.”
  • “A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.”
  • “In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.”
  • “A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.”
  • “In disposing of a file, a lawyer should protect the confidentiality of the contents.”
  • “A lawyer should not destroy or dis pose of a file without screening it in order to determine that consideration has been given to the matters discussed above.”
  • “A lawyer should preserve, perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of.”
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