Ethics

Aging attorneys are a lurking problem in the legal profession.

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Samuel Stretton
Samuel Stretton

The problem is compounded by what to do in this age of electronic files where some lawyers don't really have paper files anymore. But perhaps that can be easily resolved. An electronic file can be placed on a computer disc and can be given to the client, with the lawyer maintaining a copy.

Files are often voluminous thanks to copiers. Before copying was so easily done, many lawyers' files were a quarter-inch thick, even in the most complicated cases. But in this age, where everything is copied and recopied, files take up a lot of space.

A good idea for a lawyer is perhaps in the fee agreement to have a clause dealing with what happens to the file once the representation is concluded. Perhaps the lawyer and the client can agree as to what will be kept in the file and what can be thrown out. Anything thrown out can't go in the trash but has to be shredded to protect attorney-client privilege.

Perhaps in the fee agreement, lawyers can negotiate with clients not only what is to be maintained, but where it is to be maintained and who is to pay the cost of maintaining or accessing the file. On the other hand, if a client demands the file and the lawyer still wants to keep a copy of the file, wise lawyers keep enough of the file so they can reconstruct what they did and didn't do. A fee letter that deals with closed files and costs can go a long way to resolving and limiting future disputes with clients. It can also save a lawyer time.

Some lawyers believe they are going to destroy old files that are long past the statute of limitations, and that they can do so without notifying clients. Other lawyers believe one must notify clients and give them a chance to come in and get the files as opposed to the files being destroyed. All of this can be defined in the fee agreement.

The Pennsylvania Bar Association's legal ethics committee has discussed this issue in Formal Opinion 2007-100. That opinion has a sort of checklist. First, the opinion suggests that lawyers consider having a file management retention policy. Second, there should be a decision as to when and how a file will be destroyed. Third, the committee suggests lawyers seriously consider all statutes of limitations and any other issues before destroying files. Obviously, files that have original contracts or wills should not be destroyed. Lawyers should develop a procedure as to how to interact with clients and when to listen to a client regarding the destruction of a file.

The committee also suggests that any file destruction has to be consistent with the attorney-client privilege. It suggests that even if files are destroyed, lawyers maintain an index system of the destroyed files. Finally, in this modern age, there should be some kind of agreement between a lawyer and a client as to the handling of substantial data. With modern discovery and emails and electronic data, a file can be voluminous. Who gets what and what is destroyed should be worked out with the client, perhaps in the original fee letter.

The issue of what to do with files is for more and more lawyers an overwhelming proposition. Every lawyer struggling to make their overhead each week now faces the added expense of file storage and file destruction. But the Pennsylvania Bar Association is right that lawyers should develop a policy and procedure and try to follow them. One of the key steps is notifying the client well in advance so the client's views are known and honored when reasonable. Lawyers who ignore this can create problems for themselves and for clients. Whether files are electronically stored or stored in paper, the process can still be overwhelming, confidentiality still has to be maintained and clients' wishes have to be considered and potentially honored. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.

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