The Risk Manager, Fall 2010
We are seeing more and more problems with defending malpractice claims because lawyers are failing to file e-mail correspondence with a client or about a client’s matter. This has resulted in the loss of key evidence supporting a lawyer’s competent representation making an otherwise strong defense of a claim problematic.
The Bench & Bar article “The Amazing Client Electronic File” covers a lawyer’s obligation to retain e-mail and e-documents relating to a representation, the ethical considerations in how a lawyer should organize and store e-mail and e-documents, and which retained e-mail and e-documents should be included in the client’s electronic file that should be provided the client upon request. If you are unclear on these ethical requirements, it is recommended that you soon read the article (Bench & Bar May 2010, Vol. 74, No.3; available on Lawyers Mutual’s Web Site at lmick.com – click on Resources, click on Bench & Bar Articles, select article).
What follows is a recap of the risk management considerations for client electronic files covered in the article.
Risk managing a lawyer’s duty to maintain client files in a manner to competently represent a client involves:
- Implementing a file retention and disposition plan.
- Including in all letters of engagement how a client’s file is managed.
- Establishing office procedures for protecting client file confidentiality.
- E-mail and e-documents must be specifically covered by each of these risk management tools.
E-mail and e-documents in file retention and disposition plans
Law firms must have a filing procedure that systematically collates retained records in a readily retrievable paper and electronic filing system format. The first step is to integrate e-mail and e-documents file identification procedures with those used to code paper files for a client by using the same identifying characteristics for both. It is key not to allow a gap in how a client’s paper file and e-file are compiled and retrieved. Lawyers sometimes overlook that a client’s file is not completely protected by privilege and that some parts are subject to discovery. Organize the office filing system in a way to avoid costly e-document retrieval searches because of a discovery demand or for any other reason.
E-documents are not difficult to manage since they are primarily the electronic version of the kind of documents lawyers are used to filing. The real problem is controlling the filing, retention, and destruction of e-mail. Unlike mail that is received in a central office location, e-mail is sent and received on an individual basis and often on portable e-mail devices, laptops, and computers used outside the office. Furthermore, many firms automatically delete e-mail on a periodic schedule. It is critical that e-mail concerning a representation be at least temporarily part of the client’s e-file for retention review and that automatic deletion of e-mail that should be permanently filed be avoided.
A recommended approach in accomplishing this is:
- Ensure that all substantive e-mail communications with clients is maintained in the client’s correspondence file, either by printing hard copies or creating a permanent e-mail folder for client correspondence;
- Establish a protocol for ensuring that e-mails are maintained for the client file. For example, if multiple attorneys are working on a matter, assign one person on the matter to be in charge of ensuring that all appropriate e-mails are maintained in the file or create a public folder in which all client e-mail can be stored; and
- Consider deleting internal e-mails with drafts of documents that are not forwarded to the client.
Include in e-mail retention procedures the requirement that e-mail recipients record insofar as possible:
- Date and time of transmission and receipt of the e-mail;
- Author, writer, sender; and
- Identification of the recipient, other addressees, and person for whom intended.
Use a letter of engagement to obtain agreement on how a client’s e-file will be managed.
It is recommended that a lawyer and client reach agreement at the beginning of a representation on retention, storage, and retrieval of electronic documents in a letter of engagement by considering:
- The types of e-documents and e-mail that the lawyer intends to retain, given the nature of the engagement;
- How the lawyer will organize those documents;
- The types of storage media the lawyer intends to employ;
- The steps the lawyer will take to make e-mail and other electronic documents available to the client, upon request, during or at the conclusion of the representation; and
- Any additional fees and expenses in connection with the foregoing.
In addition consider including in the letter of engagement:
- A specific time and procedure for the client to claim his paper and e-file after the representation is concluded.
- That the file is subject to destruction if not claimed as stipulated.
- All means of communication the firm uses – fax, cell phone, e-mail, etc. – disclosing the risk of interception and providing that the client consents to these means.
- (optional) A condition that the firm has the choice of returning some or all of the client’s file in electronic format, except for original documents.
Protecting confidentiality of client information in e-mail and e-documents.
Basic Rules: Every firm should have in place measures to protect client e-document confidentiality. This begins with basic rules on office access security, locking doors and filing cabinets, turning off computers and copy machines, memorizing passwords, and making sure that computer screens are not visible to other than firm members.
Hacker Protection: Use “firewalls" -- electronic devices and programs that prevent unauthorized entry into a computer system from outside that system.
Off-Site Access: Use a password for access to the firm’s computer system by firm members working from home or out of the office. Establish encryption requirements for sensitive matters. Limit or prohibit permanent storage of e-documents on home computers, laptops, and other portable e-mail devices. Prohibit communicating confidential information over public connections. If absolutely necessary to do so, use an encryption program.
Portable and E-Mail Devices: Register all portable and e-mail devices used by firm members for firm matters. Establish procedures for prompt notification of the loss of any registered device. Confirm that the firm has the ability to wipe these devices remotely.
E-Mail: Implement written procedures for managing e-mail that protect confidentiality by covering:
- Who has access to confidential e-mail;
- How confidential multiple address messages and group distributions are to be controlled;
- How confidential e-mail is to be backed up, stored, and destroyed; and
- How people who work at home get access to the firm’s computer system and send and receive confidential e-mail.
Primary sources for this item are the ABA/BNA Lawyers’ Manual on Professional Conduct, Electronic Communications, 55:404 (4/30/2008); Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2010, Use of Client Engagement Letters to Authorize the Return or Destruction of Client Files at the Conclusion of a Matter; MacAvoy, Espinoza-Madrigal, and Starr, Think Twice Before You Hit The Send Button! Practical Considerations In The Use Of Email, The Practical Lawyer, Vol. 54, No. 6, 12/2008; and Martin, Why You Need An Employee Policy For Electronic Information, The Practical Lawyer, Vol. 56, No.1, 2/2010.