There is no longer a category 4 for purposes of the analysis. The lawyer must maintain an index of all destroyed files, which index must contain information sufficient to identify the client, the nature or subject matter of the representation, the date the file was opened and closed, the court case number associated with the file, a general description of the type of property destroyed, e.
What are the ethical considerations relating to electronic files? When paper files are converted to electronic format, destruction of the paper file is not without limits or conditions. Even after Category 1 documents are scanned and converted to electronic format, the lawyer cannot destroy the paper Category 1 document. After scanning and conversion, Category 2 and 3 documents may be destroyed, but the best practice is to follow the procedure used for ordinary paper documents.
Like documents that are converted, documents that are originally created and maintained electronically must be secured and reasonable measures must be in place to protect the confidentiality, security and integrity of the document.
The lawyer must ensure that the process is at least as secure as that required for traditional paper files. The lawyer must have reasonable measures in place to protect the integrity and security of the electronic file. This requires the lawyer to ensure that only authorized individuals have access to the electronic files. The lawyer should also take reasonable steps to ensure that the files are secure from outside intrusion. Such steps may include the installation of firewalls and intrusion detection software.
As long as there is an internet connection available, the lawyer would have the capability of accessing client data whether he was out of the office, out of the state, or even out of the country. Additionally, there is always the possibility that a third party could illegally gain access to the server and confidential client data through the internet.
However, such confidentiality concerns have not deterred other states from approving the use of third-party vendors for the storage of client information. In Formal Opinion No. If, for example, the attorney does not reasonably believe that the confidentiality will be preserved, or if the third party declines to agree to keep the information confidential, then the attorney violates SCR by transmitting the data to the third party.
But if the third party can be reasonably relied upon to maintain the confidentiality and agrees to do so, then the transmission is permitted by the rules even without client consent. Therefore, the Committee does not suggest that the protective measures at issue in Ethics Op. Ethics Op. In their opinions, the Bars of Arizona and Nevada recognize that just as with traditional storage and retention of client files, a lawyer cannot guarantee that client confidentiality will never be breached, whether by an employee or some other third-party.
Rather, both Arizona and Nevada adopt the approach that a lawyer only has a duty of reasonable care in selecting and entrusting the storage of confidential client data to a third-party vendor. The duty of reasonable care requires the lawyer to become knowledgeable about how the provider will handle the storage and security of the data being stored and to reasonably ensure that the provider will abide by a confidentiality agreement in handling the data.
Additionally, because technology is constantly evolving, the lawyer will have a continuing duty to stay abreast of appropriate security safeguards that should be employed by the lawyer and the third-party provider. In whatever format the lawyer chooses to store client documents, the format must allow the lawyer to reproduce the documents in their original paper format.
Failure to do so could result in the disclosure of confidential information to a subsequent user. If such disclosure occurs, the lawyer could be subject to disciplinary action for a violation of Rule 1. There are various possible combinations of client file formats, including original paper files scanned and converted to electronic document format, original e-documents, and e-mails.
Often client files are maintained in part in paper format and electronic format. Rarely is it possible to originate and maintain a client file in electronic format. Therefore, the best practice is to develop a procedure that integrates the various file formats into an organized, indexed and searchable, unified system, so that prompt access to and production of the complete file, regardless of its various formats, can be reasonably assured.
Where a client has requested a copy of his file, the file may be produced in the format in which it is maintained by the lawyer, unless otherwise agreed upon or requested by the client. Likewise, if the client requests the lawyer to produce the file in electronic format, but the lawyer maintains portions of the file in traditional paper format, the lawyer is not required to produce the file in electronic format, but may simply produce the file in the format in which it is maintained.
This guide is not a rule and this suggested time period may not be appropriate for all client files. Lawyers should use their own judgment when establishing destruction dates for client files based on the circumstances of the individual client matter and their own needs and the needs of their firm and clients. For example, factors such as the nature and complexity of the matter may require a longer retention period than the suggested 15 years.
The following are some of the factors that a lawyer must or should consider when determining the length of time to retain a file. A lawyer should have a system for organizing and retrieving closed files. When a file is closed, the file should be classified as closed. In some instances, it may be advantageous to store documents electronically rather than in paper files. In making such decisions, the lawyer must ensure compliance with all legal and regulatory obligations.
Other legislation such as the Income Tax Act may have different requirements. If the record or document is to serve as documentary evidence, lawyers should ensure that proper steps are taken to comply with any evidentiary rules governing the admissibility of such documents.
To qualify as evidence, imaging and microfilm including microfiche reproductions may have to be produced, controlled and maintained according to certain specifications.
Documents should remain trustworthy, readable, and accessible for the applicable retention periods. In order to ensure the accessibility and readability of documents, the appropriate hardware and software should be maintained during the retention period. Closed files should be stored either on site or in an off-site location. Regardless of the location, lawyers must ensure that confidentiality is maintained. The storage facility must be secure to maintain confidentiality and to protect the files from damage or loss.
If files are stored electronically, lawyers may wish to consider whether to encrypt stored files. When storing files electronically lawyers should consider both the physical location and the medium e. Lawyers should have a system for backing up closed files. In addition, the lawyer should ensure that documents, data and information in the file can be accessed during the file retention period. The lawyer should be prepared to convert older electronic formats to new formats so that they continue to be accessible.
In addition it may be useful to include on any list of electronic files, the file format in which the documents are saved so as to facilitate conversion of the document at a future date. As part of the file closing procedure, the lawyer primarily responsible for the file or if this is not possible another lawyer in the firm, should consider reviewing the file again prior to destruction to ensure that circumstances have not changed since the establishment of the destruction date and that the file destruction should proceed.
Alternatively, the firm might implement a system to ensure that where there is a change in circumstances prior to the destruction date, the file is reviewed and the destruction date is changed if necessary.
Files that are to be retained indefinitely may be reviewed periodically, perhaps 10 or 20 year intervals, to determine whether there has been any change in circumstances that would now allow for the destruction of the file. Lawyers must ensure that they maintain confidentiality when disposing of files. If paper documents are shredded or incinerated, the lawyer must ensure that confidentiality is maintained both during the destruction process and the disposal.
When destroying a file, a lawyer should ensure that all of the contents of the file are destroyed. This includes both paper and electronic documents and electronic information contained in the electronic document such as metadata. This will assist a lawyer to counter allegations that a file was destroyed indiscriminately. Protect yourself. Back to top. The primary Georgia Bar Rule that applies to record keeping is 1. Georgia Bar Rule 1. If you immediately return or destroy files after representation, you may find it more difficult to defend yourself later in a malpractice claim or disciplinary matter, if necessary.
Keeping documents forever could create a security risk or other problems over time, so make sure you disclaim any future duties to the client in writing at the end of each client matter. The best practice is to create a specific firm policy for file retention, ensure that lawyers and non-lawyers in your firm clearly understand the policy, and then communicate it to clients at three critical points:.
Documents with original signatures may require some extra effort. Try to return these documents with receipt confirmation when the matter is concluded. Many firms keep this simple, conducting a year-end file review to identify all of the client files eligible for destruction.
After appropriate client notification, files are reviewed to segregate documents with original signatures and then shredded.
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