System for Organizing Closed Files

A lawyer should have a system for organizing and retrieving closed files. When a file is closed, the file should be classified as closed. The law firm’s database should contain a list of all closed files, the file name, the original file number and the closed file number if different, the location of the stored file including where applicable, the box or carton number and the file destruction date.

Form or Medium of Storing Closed Files

Lawyers may store files electronically and/or in paper form. Any electronic format which is reasonably secure, well recognized, and reliable is acceptable for storage of the whole, or parts of, the closed file.  However, where the lawyer has agreed to maintain any original hard copy client documents, the lawyer will be expected to maintain them as such, unless alternative arrangements have been agreed with the client.  In some instances, it may be advantageous to store documents electronically rather than in paper files. In making such decisions, the lawyer must ensure compliance with all legal and regulatory obligations.

If the record or document is to serve as documentary evidence, lawyers should ensure that proper steps are taken to comply with any evidentiary rules governing the admissibility of such documents. To qualify as evidence, imaging and microfilm including microfiche reproductions may have to be produced, controlled and maintained according to certain specifications.
Documents should remain trustworthy, readable, and accessible for the applicable retention periods. In order to ensure the accessibility and readability of documents, the appropriate hardware and software should be maintained during the retention period.

Storage of Closed Files

Closed paper files may be stored either on site or in an off-site location. Regardless of the location, lawyers must ensure that confidentiality is maintained. The storage facility must be reasonably secure to maintain confidentiality and to protect the files from physical damage or loss.

If files are stored electronically, lawyers may wish to consider whether to encrypt stored files.  When storing files electronically lawyers should consider both the physical means of access and the medium (e.g. backup tape, disk, data storage system or external drive) on which they are stored. Lawyers should have a system for backing up closed electronic files.

In addition, the lawyer should ensure that documents, data and information in the file can be accessed during the file retention period. The lawyer should be prepared to convert older electronic formats to new formats so that they continue to be accessible. In addition it may be useful to include on any list of electronic files, the file format in which the documents are saved so as to facilitate conversion of the document at a future date.

Review Status of Closed Files

As part of the file closing procedure, the lawyer primarily responsible for the file, (or if this is not possible another lawyer in the firm), should consider reviewing the file again prior to destruction to ensure that circumstances have not changed since the establishment of the destruction date and that the file destruction should proceed. Alternatively, the firm might implement a system to ensure that where there is a change in circumstances prior to the destruction date, the file is reviewed and the destruction date is changed if necessary.

Files that are to be retained indefinitely may be reviewed periodically, perhaps 10- or 20-year intervals, to determine whether there has been any change in circumstances that would now allow for the destruction of the file.