Strategies for Managing the Client File

Hope A. Comisky, Pepper Hamilton LLP

Thomas Gaines, King & Spalding LLP

Marty Metz, O’Melveny & Meyers LLP

Robert Kerr, eSentio Technologies

Introduction

As firms look to deliver solutions for a reasonable cost and develop lawyers as counselors (not just content-providers), advocates (not

just process-doers) and professional partners, they bear an increasing obligation to manage a larger volume of information

related to the client file. As part of this process it is critical to understand sources of information, as well as provide the ability

to categorize that information in a way that is easily distinguishable for reference and production on request. What

technologies exist that can facilitate this process, and what strategies can be employed to ensure that the client file is

“complete”?

Managing the File FocusOver the past several years, the focus on managing the client file has changed dramatically from a paper based, department centric view to categorizing and classifying all forms of work product – i.e. electronic correspondence, electronic documents, etc.

The focus for client file management today is largely driven by:

•Client File Responsibility

•Risk Management

•Technology Management

•Firm Business Requirements

Panelists Introduction• Hope A. Comisky, Esquire

– Pepper Hamilton LLP– 11 National Offices– 500 Attorneys

• Thomas Gaines– King & Spalding LLP– 13 International Offices– 880 Attorneys

• Marty Metz– O’Melveny & Myers LLP– 14 International Offices– 1000 Attorneys

Agenda

• The Rules of Professional Responsibility and Client Files

• New Matter Intake

• Unstructured Information

• Where Data is Stored

• Transfer of Client Files

• Litigation Holds

The Rules of Professional Responsibility and Client Files*

Hope A. Comisky, Esquire

* This presentation is taken in large part from Pennsylvania Bar Association Committee on Legal Ethics and Professional

Responsibility, Formal Opinion 2007-100, Client Files – Rights of Access, Possession and Copying, Along with Retention

Considerations (“Pa. Bar Op. 2007-100”).

What is the File?

• Easy to say, but difficult to describe.• Often depends on the nature of the work.• A file may include:

– Pleadings– Documentary evidence – Correspondence (with client, third-parties,

adversary)– E-mails– Research notes– Billing materials– Time reports.

What is the File?

• Substantive vs. administrative materials.

• Maintained in multiple locations.

• Multiple non-identical copies.

Two General Approaches

• The “entire file” approach (majority view).– The client is entitled to everything in the lawyer’s

possession necessary to the continued representation of the client. See Restatement (Third) of the Law Governing Lawyers, §

46(2).

– Materials “for lawyer’s eyes only” still may be excluded.

– Non-substantive items also may be excluded (i.e., billing records, assigning memo).

“Entire File”• Presumed right of access to and possession of:

– All filed or served briefs, pleadings, discovery requests and responses

– All transcripts of any type– All affidavits and witness statements– All memoranda of law, case evaluations, strategy

memoranda– All substantive correspondence and e-mail– All original documents with legal significance (wills,

deeds, etc.)– All documents or other things delivered to the lawyer by

or on behalf of the client– All invoices sent to the client.

“Entire File”• Materials not normally provided:

– Drafts, unless they have some independent significance– Attorney notes, unless they were placed in the file

because they are significant to the representation– Copies of e-mail messages, unless they were placed in

the case because they became significant to the representation

– Memoranda that relate to staffing of law office – Items that the lawyer is restricted from sharing due to

other legal obligations (e.g., confidential information or property of another client).

• Attorney and client can enter into reasonable agreements about the contents and costs for access or possession.

Two General Approaches

• The “limited file” approach (minority view).– The client is entitled only to materials reasonably

necessary to an understanding of the lawyer’s work product.

– Examples of “limited file” states:

Arizona

Missouri

Illinois

North Carolina

Iowa

Virginia

“Limited File”

• In a “limited file” state, client entitled only to final versions of the documents.

• Presumed right of access to and possession of:– Documents provided by client– Correspondence between client and attorney– Correspondence between attorney and third parties (but

not administrative correspondence)– Copies of documents prepared by attorney and filed with

court/agency (e.g., complaint, brief, etc.)– Copies of final versions of contracts, wills, corporate

records, etc., prepared by attorney for client’s use.

“Limited File”

• No access to:– Administrative materials (e.g., internal memos

addressing conflicts, client’s creditworthiness, time records, personnel matters)

– Attorney’s notes, drafts, internal memoranda, legal research, factual research (including investigative reports).

• Attorney and client can enter into reasonable agreements about the contents and costs for access or possession.

Ill. State Bar, Op. 94-13 (1995).

Two General Approaches

• Know your jurisdiction.– For example, in Michigan, a client has only a right

of access to the file.

• Include file retention provisions in the engagement letter (always refer to the firm policy).

End of Engagement – What Happens?

• Under Model Rule of Prof’l Conduct 1.16(d), upon termination of an engagement, a lawyer shall surrender papers and property to which the client is entitled.

• A lawyer “may retain papers relating to the client to the extent permitted by other law.”

• Firm may need copies to document the course of the representation.

End of Engagement – What Happens?

• Must determine who gets original and who gets copies (rules under general approach apply, unless there is an agreement).– Makes little difference unless dealing with will,

insurance policy, or other document with independent legal significance.

End of Engagement – What Happens?

• Must adhere to continuing obligation to maintain confidentiality of information gained during the engagement.

• Under Model Rule of Prof’l Conduct 1.9(c) – “A lawyer who has formerly represented a client in a matter . . . shall not thereafter: (2) reveal information relating to the representation . . .”

How long must the firm retain client files?

• General rule: Long enough so that disposal does not cause prejudice.– Documents with independent legal

significance/property furnished by the client.• Retain according to state law of deposits and probate code.

– Records of account funds and property.• “Property” may include documents in file, depending on

state’s approach to ownership.

• Retain records of account funds for at least 5 years after termination of representation (Model Rule 1.15(a)).

How long must the firm retain client files?

– Files from criminal cases.• Should not be destroyed while client is alive, without

client’s express consent.

– Files from civil cases.• Must accomplish the following, before disposing of files:

– Use reasonable means to notify former client;

– Give former client reasonable time to respond; and

– If no response, must keep items for the longer of (a) length required by law, or (b) length client would reasonably expect attorney to retain files.

Digital File Storage

• Digital files are subject to the same requirements upon termination as paper documents.

• Factors to be considered when deciding whether to convert to a digital/paperless office include:– Some documents must be kept in original form

(e.g., wills, contracts, deeds, etc.)– Files should be stored in a format that client will be

able to access– Must have processes in place to ensure that files are

complete.

Digital File Storage

• Some documents cannot be destroyed after being saved digitally, including:– Original documents provided by client

– Copy of originals that attorney knows client wants returned.

• Firm should take reasonable steps to scrub confidential metadata from documents.

Keys to Successfully Maintaining the Client File

• Create a detailed document management policy.

• Determine when to destroy a file in light of applicable statutes of limitations, the nature of the case, etc.

• Maintain a file index.• Maintain client confidentiality—particularly

during disposal of files.

• Pa. Bar. Op. 2007-100 at §

F. (An appendix lists a suggested document retention schedule.)

For More Information

Visit www.pepperlaw.com

New Matter Intake

Hope A. Comisky, Esquire

New Matter Intake• Engagement Letters

– Firm form

– Required macro

– Various options through tabs

– Various check-offs for type of matter, jurisdiction, etc.

– Review by Records before opening file

– Checking compliance

Does your firm’s engagement letter reference electronic records retention?

New Matter Intake

• File Setup– Template by Practice Group

– Expanded template for hard copy files

– Data entered into the electronic management system

– Electronic bar coding of all redwells and inner files

– Files are checked out to attorney

– Periodic scanning

Unstructured Information

Marty Metz

Unstructured Information

• Email– Records management policy should require

important e-mails to be filed

– PST Files prevent application of firm records policy and management

Unstructured Information

• Network Shares / Shared Drives– Common shares limit the ability to

determine file ownership

– Do not allow for application of client / matter information based on content

Unstructured Information

• Instant Messaging– Ease of use and accessibility promotes more

informal communications

– Training on acceptable use and information that should and should not be transmitted is key

Unstructured Information

• Voicemail / Unified Messaging– Policy decision as to whether to have the

message declared to be a “record”

– Integration to email and Blackberry proliferate messages very quickly

Where Data is Stored

Thomas Gaines

Where Data is Stored

• Records Retention / Destruction– Confidentiality (Firm policy)

– Culling of files

– Client notification of storage

– Client notification of destruction

Where Data is Stored

• Court Ordered Destruction of Client Files– Confidentiality in destruction process

(vendor rules)

– Certification from vendor

Where Data is Stored

• Return of Client Files on Request– Require request in writing

– Documentation of materials being returned

– May retain copies of some or all of the file (depends on reason for request)

– Always return original client files (unless clients direct otherwise)

Transfer of Client Files

Thomas Gaines

Transfer of Client Files

• Intake of Lateral Attorneys– Normally, written request to transfer the file

is required by prior firm

– Require client/matter number to deposit documentation/e-mails

– Bar coding of all files

Transfer of Client Files

• Transfer of Client Files to Another Firm– Basically, same consideration as (Return of

Client Files on Request)

– Can track files being transferred by bar coding

Litigation Holds

Robert J. Kerr

Litigation Holds• Firms should take steps to establish some process and

templates for consistency of application and procedure at the time a litigation hold is initiated. This process will provide the Firm with a workbook of forms and policies to use for each implementation of a litigation hold.

• Creation of this workbook should be done in advance of any litigation holds to ensure consistency in application of all processes, and integration to the firm’s records retention policy

Litigation HoldsForms in the Workbook should include:•Documented workflow for review, notification and implementation of a litigation hold;

•Assignment of responsibilities

•A standard checklist to be used for all notification activities;

•A standard template to be used for notification to custodians of a litigation hold;

•A data map outlining all user accessible repositories, their retention periods, backup schedules and contact information for business and technology owners;

•Documented reporting mechanism to encompass the litigation hold steps and processes;

•Standard repositories and naming conventions for data collection storage;

•Industry standard tools (defensible) for collection, and trained collection personnel;

•Training materials and activities for Attorneys, IT, Records

Litigation Holds

Release& AuditComplianceNotificationIdentificationLitigation Initiation

The Preservation Process Lifecycle

Litigation Holds

• Litigation Initiation— Triggering Events, Case Evaluation, Review and Assignment

• Identification— Scope of Hold: Individuals and Relevant sources of ESI— Communications with IT regarding data sources, systems, &

retention policies• Notification

— Issuance and re-issuance of litigation hold notices• Compliance

— Acknowledgment and adherence to policy— Follow up communications with key players

• Release & Audit— End suspension and resume normal retention policies — Periodic reporting capabilities

Litigation Holds• Suspend automated destruction, deletion,

overwrite of potentially relevant materials– Email

– DMS

– Records

– Unstructured data sources

• Create an electronic flag for hard copy records

• Monitor with activity report

• Not deleting is not preserving

Thank You!

Q & A