File Closing System
Lawyers should have a client file closing procedure that
- ensures the title is reviewed before closing
- provides for the storage of closed client files separate and apart from active client files
- assigns a new closed client file code to the file
- provides for the destruction of the closed client file at the appropriate time
When to Close Files
Lawyers should only close files after all matters related to the file have been completed and, in particular, after all undertakings have been satisfied.
Distributing and Disposing of File Contents
Prior to closing the file, lawyers should remove any unnecessary documents from the file.
The lawyer should provide to the client
- client’s original documents
- opposing party documents
- reports, asset and/or liability statements or other documents related to the issues in the matter
- any other court or legal documents not already provided to the client in the course of the retainer such as pleadings, affidavits, transfers, mortgages or similar documents
The lawyer may consider having the client sign an acknowledgment indicating receipt of the documents.
The lawyer may consider destroying or disposing of any documents that may be obtained from court, land title office or other government registry, provided that the lawyer does not anticipate he or she will require the information for purposes of his or her own defense.
Client files that should be retained and the length of retention will be determined by the particular circumstances taking into account
- whether other sources are available to obtain information contained in the file such as information stored in Registry Offices or court records
- a lawyer’s potential liability for errors and omissions
- any applicable limitation periods
The lawyer should keep in closed client files
- correspondence including e-mail, memos or notes relating to communications
- file notes
- drafts and final version of any agreements as evidence of instructions
The lawyer should consider retaining
- legal research
- case law, or a list of case law
- documents to serve as precedents
The lawyer should assign a closed client file code.
The lawyer should send the closed paper files to a storage location.
Lawyers should store closed files in secure cabinets or locations
- separate or apart from active files
- to protect the files from destruction or damage
- to maintain client confidentiality
- filed in an orderly fashion for easy retrieval
If the lawyer stores closed client files in an off-site storage location, the lawyer shall ensure that client confidentiality is protected and maintained.
Retrieval of Closed Files
In the event the file is transferred to the client or other counsel, the lawyer should discuss with the client
- whether or not the client will be charged for
- time and effort in preparing the file for transfer
- additional photocopies of file documents
- if closed and in storage, retrieval of the file
- restrictions on file transfer if accounts remain unpaid at the time of transfer
Retrieval of Electronic Files
The lawyer should ensure that closed electronic files are stored or saved in a form or format that will be retrievable in the future.
Destroying Client Files
Lawyers should consider whether the client file should be retained indefinitely or whether it will eventually be destroyed.
If the client file is to be destroyed, the lawyer should determine
- date the file is to be destroyed taking into consideration
- any legal or regulatory requirements to maintain certain file contents
- limitation periods relating to the lawyer’s potential liability for malpractice, or misconduct
- manner of file destruction to preserve confidentiality
Lawyers shall maintain client confidentiality when client files are destroyed.
Reviewing File Management Systems
Lawyers may consider drafting and maintaining a current office manual setting out the systems and procedures for the lawyer’s practice.
Lawyers may also consider reviewing and, if necessary, updating as required
- all practice management systems
- firm checklists, substantive and procedural
Lawyers should consider training for firm personnel in the proper use of office systems and implementation of procedures.