It seems relatively easy to set up a filing system and add files to it. But what do you do when you absolutely run out of room to store any more files? Which ones do you get rid of? When do you dispose of them, and how do you go about doing it? And what ethical obligations do you have with respect to file storage and disposition?
What seems, at first glance, like a simple clerical task can spiral into an ethics nightmare if you’re not careful. Every lawyer needs to understand the professional obligations related to file maintenance, production, storage and destruction, and to have a good system in place to make sure that those obligations are properly met at every stage of the process.
The first thing to do is carefully review your jurisdiction’s rules of professional conduct to determine exactly what your obligations are regarding storing, stripping and disposing of client files.
Then, develop a written system that described how files are opened, how long they are kept, where they are to be found once closed and what records you will make to memorialize the fact that a file has been destroyed.
Whenever you turn over a file to a client, be sure to get a receipt that indicates what was in the file, and add that receipt to your administrative files, to only be destroyed when there is no longer any possibility that it might be needed (consider keeping a scanned copy of the contents of the file for your own protection – as you may not be able to get that file back should the need arise..).
Never destroy a file except in accordance with your regular schedule, so that you can not be accused of doing so to try to cover up evidence of malpractice.
Lastly, store your closed files in boxes organized around their destruction dates (here we assume that you set the date for the destruction of the file at the time you close the file). This way it is easy to see which files are to be destroyed when. Your closed file records should be able to indicate in which box a particular closed file is to be found should you need to find it. This method of organizing closed files saves time – as there is no need to go thru all your closed file boxes and cull out the ones that are to be destroyed this year…and the next…and the next….
Take time today to put in place a system for regularly closing, storing and purging files and materials that you and your clients no longer need, and you’ll never want for storage space or an organized filing system.