Handling closed client files is not a favorite topic for most lawyers. Depending on the type of case, at the conclusion of the representation the lawyer and the client may be ready to move on.
At OBLIC, we often get calls about closed client files. The Ohio Office of Disciplinary Counsel has an excellent brochure Managing Client Files & Trust Accounts which lists the steps for the current practitioner, those winding down a practice, and for those left behind when a lawyer is deceased.
Here are some best practices when dealing with closed client files:
1. Establish a file retention and destruction policy.
Note the firm may have other document retention policies as part of its overall record retention plan.
2. Prof.Cond.R. 1.15 requires IOLTA records, including a copy of the fee agreement if any, to be kept for seven years. For other non-IOLTA records, OBLIC recommends a client file retention policy that will give the client the original file when the representation concludes.
The practice area, types of documents involved, and geographic area may influence this policy.
3. Carefully consider whether to retain any original client documents.
It is best to give the client the original document and retain a copy, noting on the document “Copy” and indicating the date the client received the original.
4. Inform the clients in writing of the file retention and destruction policy, within your written fee agreement and again in a file closing letter. If the client has not been informed of this policy, a follow-up letter can be sent at any time to let the client know.
5. At the conclusion of the representation, prepare the original file to go to the client. Scan and securely retain the contents of the file the lawyer would want to have if the client subsequently made allegations of legal malpractice or filed a disciplinary complaint.
6. Send a file closing letter. Allow approximately 60-90 days from the date of the file closing letter for the client to retrieve the closed file unless you are sending it electronically, with an additional option of mailing if the client cannot come to your office.
7. Follow the procedures outlined in the file closing letter and get a signed receipt. Scan that signed and dated receipt and maintain in a permanent digital record. If the client does not wish to receive the file and they have returned the form indicating they do not want the file, scan the signed form into your permanent digital record. Per the notice in the file closing letter, the paper or electronic version of the original file can then be destroyed.
8. Retain the closed receipt or letter from the client with the information the lawyer would want in the event of future allegations of legal malpractice or disciplinary violations.
9. Maintain a list of all closed client files and a list of all destroyed client files and keep records of certificates of destruction. If a document destruction service is used, request a certificate of destruction.
10. Regularly review lists of “open and active” and “closed and destroyed files”. Be sure files are listed in the appropriate lists.
We hope following these procedures will alleviate the common problem of lawyers accumulating basements and storage units of closed client files. If you already face that situation, here are some steps to take:
A. Compile the lists of all closed client files and their location.
B. Designate specific blocks of time to begin going through the files, and if possible, identify a staff person to assist the supervising attorney.
C. Purge and destroy files in accordance with your file retention and destruction policy.
D. Notify clients of your current file retention policy, if any, at their last known address and ask them to arrange to pick up their file.
If there are questions about closed client files, please do not hesitate to contact us at OBLIC.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.