Dubois-Mark
Attorney Mark Dubois ()

I am engaged in an epic project. As part of my duties as incoming president of the Connecticut Bar Association, I have been working in the basement of CBA global headquarters in New Britain trying to winnow essential records and historically significant ephemera from the heaps, piles, drifts and dumpsters of paper accumulated over the last century or so.

The “law bidness” (as my brother in the South calls what I do) generates a lot of paper. Amazing amounts. And, on top of it, we now accumulate lots more data electronically. Unfortunately, it is easier to just keep dumping the stuff in the basement/garage/barn/storage unit than to adopt a rigorous and sane policy of retention and destruction.

I get frequent calls about what is a good document-retention program. The CBA ethics folks have issued guidance that seven years is a reasonable period, probably beginning with the fact that this appears to be the maximum “look back” period for tax purposes. Rule 1.15 of the Rules of Professional Conduct was recently amended to include seven years as the period any records related to client financial transactions had to be maintained. Such records include retainer agreements, any bills paid on behalf of a client, records of funds in and out, client ledgers or journals, canceled checks and such. (Google “Rule 1.15(i)” for a complete list.)

I also warn lawyers who have the idea they might off-load files quicker that there is a loose six-year statute of limitations in grievance matters. This is simply a screening rule, and grants no substantive defenses to a late-presented complaint, but nevertheless, one risk of dumping things too fast is that you might need the records to defend yourself.

While the statute of repose on malpractice cases is three years, there is a robust body of law allowing the deadline to be extended by continuing representation, continuing course of conduct or fraudulent concealment. So dumping records too quickly has risk in this area also.

Of course, there is also the institutional inertia at work here where we are always “going to do something about those old records” and never do until the problem becomes unmanageable. Often, lawyers’ widows, successors, trustees and “last partner standing” have to deal with decades of moldering files in hundreds of boxes and barrels. This is not the kind of legacy that leaves you well-remembered by your survivors.

Rule 1.16 mandates that a lawyer surrender original client property on the termination of a representation. As some of these records contain personal medical information, bank account info and other sensitive matters, a good policy might be to remove this type of material quickly, even before the storage process begins.

I remember getting a call from a building manager who reported that a lawyer was throwing files into the building dumpster, which contained income tax returns and other information related to his clients. The lawyer’s explanation was that he was buried in old records and was trying to avoid storage costs. Unfortunately, the risk of keeping sensitive records is disposing of them appropriately, and this fellow was not pleased when he learned how expensive it was going to be to shred rather than dump the stuff he probably should never have kept.

I wish I had a nickel for every will Connecticut lawyers have which belongs to former clients they have lost contact with. Some states have registries where these can be deposited. Lacking that, survivors are forever calling state and regional bars and lawyer regulators looking for the files of the dead lawyers who did estate planning for recently deceased relatives. Not optimal, and no way to be remembered by your clients.

Some have decided to scan all of their records, figuring that electrons take up less space than files. I have a brother who teaches college. He put much of his life’s work on some thumb drives only to later learn that they have a short life and he lost a few decades of irretrievable stuff. Others have lost records when they uploaded them to cloud storage facilities that disappeared overnight. Remember Megaupload?

The moral of all this is pretty obvious. Spend a few minutes developing a retention plan. Have it reviewed by someone, and then stick to it. Get rid of stuff you don’t need quickly. Store the rest securely. Remove old material as it becomes eligible. And never keep original wills!•