All good things come to an end. Okay, maybe not “general” client matters, which can stay open for decades, but you will certainly need to regularly deal with the final disposition of records as an Information Governance function.
Alexander already did a great job of outlining the importance of closing a matter, which teams need to be involved, and the important role played by your records retention policy (for more on the records management side of the equation, check out the ARMA GARP IG Maturity Model.)
More specifically from an Information Governance (IG) perspective, the following notes will highlight a few areas of focus to help ensure the successful disposition of physical and electronic records at the very end of the matter life cycle.
Close Idle Matters
I mentioned in my last blog post that the more you let idle matters stay open and build up, the more likely they’ll be flagged on a conflicts check, and thus require excessive review by other matter leads. Failure to close idle matters will also ensure that whatever records are in them will remain untouched by your Records Retention Policy. If possible, try to convince your lawyers to avoid “general” matter classes that never close. These matters have other risks as well as they act as giant document vacuums that suck up a vast number of current and departed timekeepers if they’re ever subject to a Litigation Hold.
We have a policy that any matter that hasn’t had time recorded to it in a year is closed unless the matter lead provides justification for keeping it open. Our Business Intake and Conflicts group runs through this exercise once a year. A handful of matter leads always find this annoying, however the benefit for the entire firm is that all the conflicts reports for review throughout the year are far more reasonable in length.
Transferring = Disposal
- get rid of by throwing away or giving or selling to someone else
Your role as a custodian ends when records are being permanently removed from your control. If the closing of the matter also stipulates the transfer of records, ensure you have a documented, repeatable process in place for how you manage the transfer of a matter to new counsel, back to the client, or with a departing attorney. Ensure with any transfer that you have an authorization on file, signed by the client, that explicitly states which items are being transferred and whom/where they are being transferred to (for your own sanity, include the matter description(s) and number/code(s) on the form). Make sure you note that both physical and electronic data is being transferred (ABA Formal Ethics Opinion 471 helps illustrate that a record is a record regardless of format, so it you’re not already transferring relevant electronic records, review your policy with counsel.) Don’t keep “mementos” of a matter if you don’t have to. Like that photo you kept of the date you took to the prom, if you didn’t marry that date you probably are going to regret when someone else finds it in a shoebox later.
Make sure you pull all business-related records for the closed matter prior to a transfer. Make sure the matter lead reviews the records being transferred, especially the “Correspondence” folder if you’re transferring electronic information. There may be fun internal conversations filed that would make the client blush (or enraged.)
Once the transfer is complete, dispose of the records in your RIM system. Leaving them as “checked in/transferred to [X]” is going to make reporting miserable.
Notification of Disposal
Notification requirements can vary widely from state to state, or type of court, or by type of law. But it’s safe to assume one thing – at some point you have to inform the client of how your records retention policy will result in final disposition of their matter records. Rather than relying on each attorney to do this, ensure this is stated clearly in both your Engagement Letter and your End of Representation Letter. It doesn’t have to be “on this date…”- it could be more general, like “Under our document retention policy, we normally destroy client files 10 years after a matter is closed, unless you make other arrangements with us.” Of course this requires a defined and documented Records Retention Policy. If your policy is “forever,” or you don’t have one, you should document specific acknowledgement from the client when you destroy anything. Whatever you do, ensure your notification process is blessed by Firm Counsel.
It’s Not Over ‘til it’s Over
Just because a matter is closed doesn’t mean the life cycle is over. For most of us, matter closure starts a records retention timer. While you may no longer be billing to that matter, you don’t truly reach the end of the life cycle of that matter until the records are destroyed. And if you lose track of those dusty records, who knows when that might be.
I’m sure many of you remember back when an Arthur Andersen accountant testified that, when faced with the Enron investigation, he tried to get people to follow their records retention policy and destroy the drafts, notes and memos that they weren’t required to keep (but kept anyway, because they hadn’t been following their policy). Don’t do that. A notice of pending litigation always trumps your policy (make sure you have a documented exception process too ...)
Follow your retention policy. Don’t put yourself in Arthur Andersen’s shoes and find out later when there’s a breach, litigation, or destructive order that you’ve got a ton of unnecessary records (or no longer relevant notes) for closed matters. It will certainly impact the cost of compliance, and might even introduce more serious risk – imagine if a M&A attorney saves a note for a long-ago closed matter that just says “there’s a problem.” Why keep something like that? How is it going to be interpreted out of context if there’s future litigation?
Ensure you have policies that mandate filing physical and electronic records to the proper physical or digital matter folders, and avoid keeping them comingled in attorney mail files. What happens with those giant mail files when they attorneys retire/leave? (Hint: they don’t get deleted; and since they're not part of a regular backup cycle, they are archives, not backups.) How can you successfully dispose of all the relevant matter records if your timekeepers are keeping copies of the records? Better yet, how can you be confident you don’t have an obligation to search for records for closed matters whose managed records you’ve marked as “destroyed per policy?” Just when you thought it was over, failing to follow a records retention policy can cause litigation to breathe new life back into a closed matter when you thought its life cycle was over.