Whilst most lawyers do not expect it when they begin their careers; documents (and paperwork) tend to dominate most law firms. In a 2003 survey conducted by the American Bar Association, lawyers reported that one of their greatest disappointments in practising law is the large amount of paperwork.
There are numerous (practical) issues in managing this mountain of paper that is generated throughout the "life" of a file. In this article, we focus on key considerations when closing a file.
FILE CLOSING PROCEDURE
Similar to how a case must start with a file opening procedure; a file must also be closed with a dear set of closing procedures. This procedure need not be a comprehensive or even an elaborate one. What is important is that, whether or not a formal policy is written up, lawyers and staff alike should come to an understanding on your firm's file closing procedures. Conduct regular staff briefings to remind staff of the policy. New staff must be inducted on the firm's file management policies from start to end. Partners of the firm should also conduct periodic spot checks on files to ensure the procedure is being followed.
See the
File Closure Checklist for a quick guide to closing a file.
THE CLOSING LETTER
An important element of file closure is the Closing Letter to the client. As far as possible, a Closing Letter should incorporate the following points:
- inform that the matter is now closed and provide reasons for the file closure, eg work has been completed;
- provide an explanation of the work done and the outcome;
- find out whether or not the client would like their physical file returned or if they would prefer your law firm to store the file; provide the client with a deadline by which they should revert, failing which, you will store the file.
- If your firm has a:
- Non-Destruction Policy, specify how long the file will be retained in your office before it is placed in your firm's off-site storage facility; advise the client of your firm's policy on retrieval and provision of closed file materials. You may want to consider informing the client of the approximate fee chargeable for retrieving the file thereafter.
- File Destruction Policy, specify how long the file will be kept before it is destroyed.
- enclose all original documents. Original documents may include reports etc which reasonably relate to final reporting to the client. You may choose to scan/photocopy these original documents for record purposes, cost and space permitting. If for various reasons, the decision is to store such documents, a safe and secure means of storage must be obtained, such as a vault or fireproof cabinets. Also, a prominent “flag" on the file should indicate that original documents have been retained and their location.
- thank the client and, include a Client Survey where appropriate.
Ensure your client acknowledges receipt of the Closing Letter and Original Documents. Send two copies of the letter to the client and, request they sign both letters and send one back to you. Alternatively, enclose an "Acknowledge Receipt" Form for your client to return.
Many lawyers labour under the belief that by spending time on "closing" a file, it takes away from "real" work that generates money. The truth is, the best time to close a file is when a matter is concluded. At the time, the lawyer's memory of events past is still fresh and locating "loose" and/or electronic documents (eg emails) will be quicker. A file closing policy with attendant checklists/forms/templates will facilitate this; consistent enforcement will ensure it becomes a part of your firm's culture.
To end, whilst we have focused primarily on file closure in this article, it is critical that a law firm's file management policy encompass all activities related to a file, from start to end. This means determining guidelines for inter alia opening a file; organising the file eg subfolders, filing in chronological order; labelling; check out procedures; access; closing the file, storage and/or destruction.
In doing so, the risk of missing critical dates, misplacing important client documents is reduced and it ensures proper management and maintenance of records. This will naturally lead to a lower risk of law suits against the firm; and in the event a claim should materialise, your file management policy will lessen stress by allowing for quick retrievals and an easily traceable paper trail.
All files are records...
……and can be utilised to verify any errors or omissions, even after a matter is concluded. And sometimes, what isn't in your file can be more damaging than what is! When closing your file, ensure that the final review is done by a partner and all critical information including file notes, records of conversations/instructions from the client, correspondence etc are on file.
The general rule...
...for most lawyers is to keep their client files forever - they believe it is their duty to do so - but more so to protect themselves against future claims by clients. Doing so can however be costly, time-consuming and stressful. Look out for the
Jurisk! September 2011 issue where we discuss this thorny issue of file retention/destruction in 'Closed Files: How Long Should I Keep Them For?'.
Sources:
- 'Closing the Client's File', Jim Calloway, Lawyers USA, 28 July 2009 http://lawyersusaonline.com/blog/2009/07/28/closing-the-clients-file
- 'File Closing Checklist from Oregon Law Practice Management' http://www.jdsupra.com/post/documentViewer.aspx?fid=59178747-ae13-4cf0-b074-93a2735482d3
- 'File Management Retention and Destruction', Risk Management Handouts of Lawyers Mutual, Liability Insurance Company of North Carolina http://www.lawyersmutualnc.com/_public/documents/resources/File_Management_Retention_and_Destruction.pdf
- 'How Long Should You Keep Your Closed Files?", Dan Pinnington, LawPRO, Volume 9, Issue 4, December 2010 http://www.practicepro.ca/LawPROmag/file_retention.pdf
- 'Managing The Mountain Of Paper. Records Management in the Law Firm', Ellen Freedman, CLM http://www.pa-lawfirmconsulting.com/pdfs/records_management/MANAGING_THE_MOUNTAIN_OF_PAPER.pdf
- 'Organising & Maintaining Files in a Small Law Firm', Alabama State Bar Law Office Management Assistance Program http://www.alabar.org/pmap/articles/filing.pdf
- 'Practice Advisors: Guidelines to Assist in Obligations Regarding Closure, Storage and Destruction of Client File' http://www.lawsociely.ab.ca/lawyers/practice_advisors/practice_ethics/practice_advice_file_storage_and_destruction.aspx
- 'Preserving the Record', J. Nelson Thomas, GP Solo Magazine, Oct/Nov 2003 http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/preservingtherecord.html
- 'The Illusion of Size (And Other Ways to Compete with the Big Competition)', Davis C. Bae, Law Practice Today, May 2009
- http://apps.americanbar.org/lpm/lpt/articles/mgt05091.shtml│http://www.scbar.org/public/files/docs/PMAP/FileClosingltr.pdf
- http://www.gabar.org/public/pdf/lpm/dlcls.pdf