Psst.! We have a new co-Author – Bill Cobb, Assistant General Counsel in the State Bar’s Office of the General Counsel. You will learn more about him later.
Data is big right now! How do you secure all of the information that comes into your possession or knowledge, especially the digital data that just doesn’t seem to stop? For lawyers, it can be a tricky proposition. One of the most frequent questions we get is, “how long do I have to keep client files,” and while this question has some clear parameters, what about all the other information that is kept on a daily basis by law firms? What happens to all that data? Well, perhaps we’ll get to that in some of our next posts, but for now let’s focus just on client file data.
The first thing lawyers can do to better manage data from client files is to create a plan specifically identifying what is to be saved and what is to be destroyed and when. This plan, of course, will need to ensure proper steps are being taken to comply with the State Bar’s ethics rules, but also any other rules or regulations pertaining to your client’s data. Because they are so important, let’s spend some time with these rules.
The only State Bar ethics rule (Georgia Rules of Professional Conduct) specifically requiring data retention is one of the trust account rules, 1.15(I)(a): “Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.” The Rule 1.6 obligation of non-disclosure, which continues after the representation ends, means that all retained records pertaining to a client matter, whether required by Rule 1.15(I)(a) or not, should be reasonably secured against inadvertent disclosure. Beyond that, record retention policies and practices are often determined in consultation with the lawyer’s professional malpractice carrier.
Rule 1.16(d) requires “surrendering papers and property to which the client is entitled” when the representation ends, i.e., returning the client’s file, and you should assume that it includes “papers” in electronic form. Of course, not all clients want their files, but to protect against allegations of violating Rule 1.16(d), good practice is to give clients a written opportunity to obtain their files before an identified possible destruction date. The client is entitled to the original file, the lawyer can keep a copy at his/her own expense (unless the client agreed in advance to bear that cost), and the file cannot be withheld due to unpaid fees or copying costs. Formal Advisory Opinion No. 87-5. Copies sent to the client during the course of the case may not satisfy this obligation. Adams v. Putnam County, 290 Ga. App. 20, 21, 658 S.E.2d 805, 807 (2008). Limited types of documents need not be given to clients. Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571, 573 and n.3 (2003).
As for other rules and regulations, make sure you identify the firm’s role in keeping personal confidential information, health information and personal financial records. Each of these types of data may require special steps. Check with current regulatory agencies and related entities’ websites and portals for current requirements.
When creating file retention and destruction policies make sure they comply strictly with these rules and regulations. Law firms are going to need to be proactive in protecting data obtained for and in the course of representation. Information gathered for client files before, during and after the representation should be reviewed to ascertain proper management. To get additional help with your retention and destruction policies, give either the Bar’s Law Practice Management Program or Ethics Hotline a call to discuss concerns and best practices!
Disclaimer: Interpretations of the Georgia Rules of Professional Conduct (ethics rules) and their applicability in this blog post are informal opinions issued pursuant to Bar Rule 4-401. They are the personal opinions of the Assistant General Counsel co-author, and are neither a defense to any complaint nor binding on the State Disciplinary Board, the Supreme Court of Georgia or the State Bar of Georgia.