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Ethical Considerations of Client File Retention in a Technological Age

Monday, 14 September 2015

by Seth Gomm, JD MBA

Many legal practitioners have offices that curiously appear to be decorated with mounds and towers of paper and file boxes, which may or may not be arranged into a functioning organizational system. The ethical storage and maintenance of client files can seem like an overwhelming endeavor, and thus often is put off to be conquered at some future time. Many firms and practitioners can't quite remember what is actually contained in the numerous file boxes that have been laid to rest in a corner or closet of their offices but nonetheless require expensive rented space to accommodate them. Understanding what to keep, how long to keep it, and how it can be stored is an initial hurdle that can be overcome with a few simple principles found in the ethics rules and in opinions issued by various state bar ethics committees.

Firms and practitioners that practice and operate in the present-day market must contend with the realities of the technologies that have infiltrated nearly every aspect of modern society. Internet and e-mail have opened up vast oceans of electronic information that can be easily searched, uploaded, downloaded, and printed or transmitted almost instantaneously. Ironically, the technological advances of the last two decades have buried firms in data, paper, and informational resources. Although it would seem that technology and digital information should decrease paper, electronic documents tend to generate even more paper. According to an article published in the ABA Journal, "[a]n information orientation ideally focuses on knowledge, not pages"; however, "[t]echnology has produced a paper blizzard." The authors estimate that the average law firm has accumulated more dead paper files in the last ten years than in the fifty years preceding. To handle this deluge of physical files, firms must find a solution that is efficient, cost-effective, and ethical.

This article addresses ethical considerations with regard to appropriate client file retention and discusses what technological options and resources a firm has available in implementing an efficient file retention system. The article presents an overview of selected rules and principles from the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RPC), opinions from the American Bar Association (ABA), formal guidance from the Colorado Bar Association (CBA) Ethics Committee, opinions from other state ethics committees addressing topics that Colorado has not yet formally addressed, and other relevant articles and resources.

This article explains that rather than simply adopting a "keep everything" policy or a bright-line rule mandating the indiscriminate destruction of an entire client file, a firm should use common sense and selective determination as to what portions of a client file should be preserved or destroyed. For example:
• Certain documents should never be destroyed because of the original and possibly irreplaceable nature of the documents.
• Before destroying a file, a firm should always try to obtain client consent from affected clients.
• A firm may consider an electronic storage system as an efficient and cost-effective alternative to paper file storage to prevent accidental premature file disposal and to help free up valuable physical storage space.
• A firm may use third-party services to electronically store client files so long as the firm ensures that the third party preserves client confidentiality and maintains other safeguards as required by the Colorado Rules.

This information is made available by Spaulding Law for educational purposes only and not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Spaulding Law, unless you have entered into a separate representation agreement. This information should not be used as a substitute for competent legal advice from a licensed professional attorney.

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