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19 Prof. Law. 1 (2008-2009)

handle is hein.journals/proflw19 and id is 1 raw text is: the American Bar Association Center for Professional Responsibility - Standing Committee on Professionalism 2008 Volume 19 Issue Number 1 The Risk Management Challenges of Record Retention and Destruction - Developing Records Management Policies that Protect Both Law Firms and Their Clients Anthony E. Davis and David J. Elkanich Introduction Lawyers wouldn't be lawyers if they didn't want it in writing. Despite increasing computer- ization - or maybe because of it - there is consid- erable pressure on lawyers to find ways to store these documents economically and efficiently on the one hand, or to dispose of them when they are no longer necessary, on the other. It should be clear to all lawyers in practice today that there are significant risks in either improperly destroying materials or in being unable to find and disclose documents - including those stored electronically. A flood of recent deci- sions in federal and state courts demonstrate that lawyers may find themselves subject to sanctions, adverse jury instructions, a mistrial, or in extreme cases, dismissal of claims if they improperly and intentionally destroyed documents that should have been retained, or if they fail to ensure reten- tion and disclosure of those that should have been discovered and produced. Lawyers are also sub- ject to claims of legal malpractice or to sanctions under the doctrine of spoliation of evidence; in rare cases, destroying documents can lead to fed- eral criminal charges for obstruction of justice. Accordingly, all lawyers and law firms need to develop a clear and appropriate records manage- ment policy, including rules governing retention and destruction of both paper records and elec- tronic documents. As those firms that have sought to develop, Anthony E. Davis is a partner wih Hinshaw & Culbertson in New York, NY. David J. Elkanich is a partner with Hinshaw & Culbertson in Portland, OR. express and enforce a comprehensive records management policy have found, this is much eas- ier said than done. Since no one has yet developed a usable one size fits all model or form policy (which would be the holy grail for most law firm general counsel and knowledge managers), and we doubt that such a unitary solution exists (yet), in this article we address a more limited objective, namely to articulate the ethical, legal and practical obligations to be considered when developing file retention and destruction policies, the various rules regarding who owns client files, when a file is dead or alive, how statutes of limitation should affect a records management policy, and the importance of developing a records manage- ment policy regarding electronic records. What Types of Records Should be Retained and For How Long? Any comprehensive records management poli- cy needs to address the following five principles: * The ethical, legal and practical obligations regarding file retention and destruction. * The rule (in almost every state) that the file belongs to the client. * Some files die, but some files remain alive indefinitely. * The applicable statute of limitations for legal malpractice establishes a minimum time dur- ing which lawyers should retain a copy of client files, even if the originals are returned to the client. * All policies should address the management of both the firm's physical and electronic data. Continued on page 4

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