The Legal Requirements Applicable to Attorney Data Retention – Part 2

On August 6, 2010, in Backup Strategies, Business Security, General, Remote Backup/Online Backup, by admin

Rule 1.15 of the New York Rules  

  • The New York Rules of Professional Conduct require licensed New York Attorneys to keep most client records for a Minimum of Seven Years after the date of the events of record. 

- You also have a Duty of Professional Care which would require you to preserve certain files because “it would be consistent with the professional responsibility of the attorney to anticipate the potential future needs for such material by the client.” 

For Example:

1. Unsatisfied Judgments: File should be retained until judgment is satisfied or can no longer be renewed.

2. Structured Settlements: Should be retained until the settlement is final.

 3. Minor Children: Files involving minor children should be retained until the youngest child involved becomes of age plus additional time for the statute of limitations to run.

4. Divorce Files: Should be permanently retained when alimony or spousal maintenance is involved. When minor children are involved, the file must be retained at least until the youngest minor child involved reaches the age of majority, allowing additional time for the statute of limitations to run. 

5. Collection Files: Should be retained until paid or if judgment is outstanding. 

6. Estate Planning: Files should be retained permanently, including: wills and trusts; pension and profit sharing plans; and tax files; all of which should be treated as vital documents. 

- You Will Also Want to Maintain for a Longer Period:

1. Cases in which the statute of limitation for malpractice claims has been   tolled or has not yet run. In New Jersey, a lawsuit must be filed within six years of when the malpractice occurred. Statute of limitations for legal malpractice start to run once the Plaintiff knew or should have known that they were actually damaged by the attorney’s negligence.

This determination is fact sensitive, so your files may be very important in determining whether the statute of limitations has run out or not. So you may want to keep it longer than 6 or 7 years to cover yourself and… 

2. You should keep any file involving a troublesome client or outcome even longer. 

So it seems that there is a 7 year rule, but as you can see, as with many rules, the exception can be bigger than the rule depending onyour practice area.

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Guidelines and Tips to Create a Document Retention Policy

On August 4, 2010, in Backup Strategies, Business Security, Email Backup, General, by admin

Corporate records are important assets. The law requires companies to maintain certain types of corporate records, usually for a specified period of time. Failure to retain those records for those minimum periods could subject you and the company to penalties and fines, cause the loss of rights, obstruct justice, spoil potential evidence in a lawsuit, place the company in contempt of court, or seriously disadvantage in litigation.

Here are some usful tips to create a Document Retention Policy.

1. Have a written document retention plan and make sure all employees acknowledge that they read the policy. Add a cover sheet with an acknowledgement and they should sign off on it every year or so.

2. Specify the individuals responsible for enforcing, monitoring and updating the policy.

3. Drafts of documents and notes should be scheduled for destruction soon after the final document is created. Keep only the final document, not all the drafts and changes that lead up to it.

4. Remove any post it notes or similar flags in paper files. They can cause confusion if they are misplaced.

5. Backup electronic records on-site and keep a duplicate copy offsite,but make sure both copies are destroyed at the same time.

6. Make sure the backup is automated or that employees are following your backup company’s instructions. Employees may not appreciate how important the data is. You own their work, that’s what your paying them for. You want to make sure you will continue have their work when they are gone.

7. Require that employees aggressively manage e-mail. Keeping e-mails in labeled outlook folders, not discussing sensitive items in e-mails and clearly labeling e-mails with documents or important discussions.

8. Test your backup. Try and retrieve documents periodically and see if it works.

9. Provide for suspension of record destruction in the event of a client’s pending or ongoing litigation.

10. When the time comes to destroy the records do it consistently for all documents in the relevant category. Also, you may want to keep a  master list or database of the destroyed files.

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The Legal Requirements Applicable to Attorney Data Retention – Part 1

On August 2, 2010, in Backup Strategies, Business Security, Email Backup, General, by admin

 Rule 1.15 of the New York Rules

The current New York Rules of Professional Conduct require licensed New York Attorneys to keep most client records for a Minimum of Seven Years after the date of the events of record. Most of these files may be maintained in electronic form.

 What’s the risk? 

  • “A lawyer who does not maintain and keep the accounts and records as specified in and required by this rule, or who does not produce any such records pursuant to this rule shall be deemed in violation of these rules and shall be subject to disciplinary proceedings.” [Rule 1.15] 
  • The records required to be maintained by the rule must be made available and produced in response to a request from the appropriate disciplinary committee or Appellate Division. 
  • Market Risk: Client may ask for documents or you may be required to produce documents in connection with client litigation.  You may be seen as sloppy, unreliable, unprofessional or worse…uninformed or out of date with regards to technology if you cannot produce them in a timely fashion. 

General Rules:

“Client Property” Must be returned to the client or maintained indefinitely:

 A: What is Client Property?

 1. “That which the client has entrusted to the attorney, such as original  documents, photographs and things.“

2. “that which has been created or obtained by the attorney as part of the undertaking and for which the client retained the attorney.” Such as original wills, trusts, deeds and executed contracts.

 How to Maintain Your Data Properly to avoid becoming a Statistic?

 The Best Approach:

 Make a copy or scan an electronic copy of any of these types of    materials and then return the original to the client.

If You Choose to Keep Original Documents For Your Client:

- You must safeguard that property; keep it in a locked office, in a safe box …

- Files with client property must be properly segregated so that they are not destroyed as you will need to maintain them indefinitely.

 Everything else (non-client property) must be maintained for seven (7) years after the representation has ended. 

Except

- Criminal case files must be maintained for the life of the defendant.

- To the extent that your file contains information that your client is required to maintain pursuant to state or federal law you must also maintain that file for as long as required by that state or federal law which is applicable to your client. 

OSHA requires medical records pertaining to employees exposure to toxic substances be retained for the duration of the employment plus 30 years. If you were involved in an OSHA litigation and you have that information in the file you may be required to keep it for over 30 years!

 Stay tuned for Part 2 to be continued in our next post…

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