Wisconsin Lawyer
Vol. 82, No. 8, August 2009
Blueprint for Converting Records to Electronic System
With the current economic climate, firms are always considering square footage of office space. Shifting records from rows of cabinets to an electronic format offers gains other than simple cost savings, including accessibility to enhanced capabilities for collaboration among team members. An electronic system also provides advantages for disaster planning purposes.
Converting to an electronic system, however, poses challenges not only concerning creation of the file but also looking beyond to the life of the record itself. Since most firms are still working on creating and establishing destruction policies, the best thing is to set in place sound policies and procedures with an eye toward the future. You should review the way your data currently is stored even if you haven’t yet implemented a retention policy. Audit the way documents (paper and electronic) are presently organized. Select a matter centric-based order of filing and apply it so that when a policy is in place, you are able to apply a retention schedule from day one.
Our firm is converting to an electronic-records system practice area by practice area, with our intellectual property group already fully digitized. Our information technology department is deeply involved because its members know how our electronic records are created, stored, captured, organized, and backed up. The remaining practice groups have found it best to adopt a phased approach to the change, combining prospective implementation for new files with small, measured amounts of retrospective conversion of active files. A standard list of folders is created for each new client or matter in our document management system. The practice groups can then work with IT to customize (modify, add, or delete) folders to better meet their filing practices. Since the document management system is matter centric, it is easy to isolate materials for later destruction.
Our standard engagement letter describes our records policies. At this point we have not destroyed any files but will be creating a comprehensive retention schedule in the near future, beginning with administrative records. We also use Filesite to electronically file all emails into the proper client or matter structure so that once we have our retention policy in place, we will easily be able to apply it. Should we choose to use a service outside of our offices for destruction of material, our warehouse vendor, Datastore, offers comprehensive services for secure information destruction, whether our information is paper-based or in digital format.
Mary Koshollek, Director of Information & Records Services, Godfrey & Kahn S.C., Milwaukee;
Mkosholl@gklaw.com
Create a Document Retention Policy
Every law firm should have a document retention policy that schedules the retention and deletion of paper and electronic files. While it is not necessary to retain all documents, a document retention policy must follow state and federal laws that set specific retention periods for various categories of documents. For example, the Wisconsin Rules of Professional Conduct require attorneys to maintain complete records of a fiduciary account for six years.
A document retention policy also should include a litigation-hold provision that requires the firm to preserve potentially relevant documents when litigation is foreseeable. Finally, such a policy should provide for retaining historical or archival documents that are important to the firm. Of course, a document retention policy also tells the firm when it can destroy certain documents, thereby saving valuable office and computer space.
There are many benefits to having a document retention policy. A complete document retention policy ensures that the firm retains specific documents in compliance with the law. In addition, a document retention policy that includes a litigation-hold provision will ensure that the firm retains potentially relevant documentation in the face of impending litigation. These provisions can safeguard the firm from spoliation claims or sanctions if litigation actually occurs.
Timothy Edwards, Partner, Axley Brynelson LLP, Madison;
TEdwards@axley.com
Invest in Records-management Software
Once you have determined how long to retain records, the next step is to develop a policy to manage records throughout their retention times. Then, consider investing in one of several software packages, such as Laserfiche, that tracks paper and electronic records in one system. There are many benefits to having a records-management software package, including quick retrieval of records, instant forensic history of records, comprehensive security, and permanent destruction of electronic records.
Records-management software can allow a firm to gain efficiencies for retrieving records while also reducing discovery costs. Having records-tracking software will allow staff to quickly and efficiently retrieve electronic documents and to identify the location of paper documents for production or discovery by searching indexed metadata for all related records, as opposed to having to manually sort through paper records.
Along with quick retrieval, another issue to consider is records integrity. As electronic records become relied on as official records more and more, the issue of records integrity will become increasingly critical. For a firm to be able to protect the integrity of its records, electronic records should be maintained in an environment that will allow the system to track every interaction that firm employees or others will have with that file. This cannot be done within an operating system but requires a database program that can track and report user activity with electronic files.
Patrick Welsch, President, Cities Digital Inc., Hudson;
www.citiesdigital.com
Ethics Issues of Maintaining Electronic Client Files
Many lawyers and law firms are increasingly using electronically stored documents, including scanning paper documents into digital format. Some firms store open and closed client files in electronic format. The Rules of Professional Conduct clearly require lawyers to protect and preserve open and closed client files, but the rules do not prescribe the form in which client files must be preserved.
Guidelines for Electronic Files. While electronic files are permissible under the rules, bear in mind the following principle: the file is the property of the client, and the lawyer is obligated to safeguard the file and provide it to the client on request. Keeping in mind this principle, here are some suggested guidelines for keeping client files in electronic format.
A lawyer may store client files, both open and closed, in electronic format, provided that the lawyer:
- retains, when necessary, important original documents that have an economic, legal, evidentiary, personal, or other value;
- maintains the necessary software and hardware to provide the file to the client in a format the client can use; and
- uses reasonable care to ensure the confidentiality of electronically stored client files.
In situations in which a third party, such as an Internet service provider, may be able to access the files, the lawyer should ensure the following:
- The third party understands the lawyer’s obligation to keep the information confidential.
- The third party itself is obligated to keep the information confidential.
- Reasonable measures are employed to preserve the confidentiality of the files.
For a much more detailed discussion of these guidelines, please see “Maintaining Electronic Client Files” in the September 2006 Wisconsin Lawyer.
Timothy J. Pierce, Ethics Consultant, State Bar of Wisconsin, Madison; tpierce@wisbar.org
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