A Model Electronic File Policy for the Law Office
(
How to Convert from Paper to
Electronic Files: Start With a Policy)
Copyright 2006 by James W. Martin, Esq.
Published in The Practical Lawyer, ALI-ABA, April 2007
Published in The Florida Bar News, November 1, 2006
Part II of this article May I Shred My Scanned Paper Files and Part III PDF or TIFF? Which is Best? are online.
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Is this you? You have been scanning legal documents
for years. You scan pleadings, contracts and other documents and convert them
to PDF or TIFF images, then email them to clients and other lawyers. Even some
courts require filing documents electronically instead of in paper. You have
been thinking about getting a faster scanner and converting all your paper files
to electronic files. You see this as an answer to the continually-growing room
of closed files or the large monthly bill for offsite closed file storage. If
this is you, now is the time to write an electronic file policy.
Electronic files are ethical. The Florida Bar
Professional Ethics Committee recently issued Opinion 06-1 which expressly
states that lawyers may store files electronically. There are a few exceptions,
such as the need to keep originals required for evidence, the need to keep
originals belonging to clients, the need to keep originals to comply with a
statute or rule (6 years for trust account checks), and the need to keep a paper
document when destroying it would adversely affect the client’s interests. The
opinion states:
Lawyers may, but are not required to, store files electronically unless: a
statute or rule requires retention of an original document, the original
document is the property of the client, or destruction of a paper document
adversely affects the client’s interests. Files stored electronically must be
readily reproducible and protected from inadvertent modification, degradation or
destruction.
The file belongs to the lawyer. The ethics opinion
makes sense because files relating to client matters are assets of the lawyer
and do not belong to present and former clients. "Files prepared and maintained
by an attorney for the purpose of representing a client are the attorney's
personal property." Potts v. State, 869 So.2d 1223 (Fla. 2nd
DCA 2004), citing Long v. Dillinger, 701 So.2d 1168 (Fla. 1997. The
Florida Supreme Court in Long stated:
As noted by the Fifth District Court of Appeal in Dowda & Fields, P.A. v.
Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984), files prepared and maintained by
attorneys on their clients' cases are commonly referenced by a particular
client's name. In reality, however, such referral simply means that the file
relates to a particular client; the file and its contents are the personal
property of the attorney. Id. at 1142. The court reached this conclusion based
on the fact that the attorney's file may or may not contain documents or other
property of the client. Importantly, the court noted that, while the attorney
may have an ethical duty to communicate information to successor counsel, only
actual property of the client must be returned.
The federal court provides a good starting point.
Much of the work in drafting an electronic file policy for lawyers has already
been done by the federal courts in adopting procedures for electronic filing.
The procedures provide sound wording to make it clear that the court file is the
electronic file that resides on the court's computer server and not the paper
document that was the source of the electronic file. Therefore, a starting
point for drafting an electronic file policy for a lawyer or law firm should be
to review the electronic filing policy of the local federal court. For
example, the U.S. District Court for the Middle District of Florida adopted the
Administrative Procedures for Electronic Filing in Civil and Criminal Cases,
which states:
1. A. Effective Date: Unless otherwise permitted by
these administrative procedures, by a general order of the Court, or by
authorization of the Judge, all documents filed in Civil and Criminal cases in
this District on or after July 12, 2004, no matter when a case was originally
filed, shall be filed electronically.
B. Official Record: The official court record is the
electronic file maintained on the Court's server and any physical item or
document permitted to be filed in paper format. When a document filed in paper
format is scanned and uploaded to the Court's server, the electronic file shall
constitute the official record.
Here is a sample electronic file policy. Set forth
below is a sample electronic file policy for a sole practitioner or small law
firm in Florida. It is only a beginning, though, because the policy should
include the specifics applicable to that lawyer or firm.
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Electronic File Policy
[Lawyer]
[Date]
1.
Electronic Files
All files that we
maintain regarding clients and their matters are stored electronically on our
computer file server. All incoming and outgoing paper documents are scanned
daily and added to these electronic files. After scanning, the paper documents
are placed into paper file folders in chronological order for convenience, but
the electronic file is this office's actual file relating to that client and
that client's matter. The paper file folders are shredded from time to time
(see below), but the electronic files are maintained after the paper file
folders and contents are shredded.
2.
Scanning
Each day all
incoming and outgoing paper documents are placed by the lawyer into the sorting
box in the order to be filed for that day (basically chronological). At the end
of each day, the paper documents are scanned and uploaded to the office server
into an electronic file designated as the general file relating to that client
and the paper document is then filed in a paper file folder labeled with the
client’s name and the designation "general file". Once the paper document is
scanned and uploaded to the office server, the electronic file shall become part
of the office file. The paper file is merely for the lawyer’s convenience while
the case is open. Any original paper documents are copied and scanned to the
electronic file and returned to the client or other person who gave them or
filed with the court (see below).
3.
File Backups
All electronic files
that we maintain regarding clients and their matters are backed up daily by
synchronizing the entire server to an external hard drive, which is then taken
off site. There are seven external hard drives that are backed up in rotation
and kept off site as follows:
Daily A
and Daily B [specify offsite location]
Weekly A and Weekly B [specify offsite location]
Monthly A and Monthly B [specify offsite location]
Annual [specify offsite location]
In addition, whenever paper file folders are shredded, the electronic files
are copied to three CDs and kept onsite and offsite at [specify locations] and
are also copied to a remote online storage server by SSL-secured Internet
transmission.
4.
File Ownership
All files
that we maintain regarding clients and their matters belong to this office and
not to the client. This includes both the electronic files and paper file
folders. As noted by the Fifth District Court of Appeal in Dowda & Fields,
P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984): "[F]iles prepared and
maintained by attorneys on their clients' cases are commonly referenced by a
particular client's name. In reality, however, such referral simply means that
the file relates to a particular client; the file and its contents are the
personal property of the attorney. Id. at 1142. The court reached this
conclusion based on the fact that the attorney's file may or may not contain
documents or other property of the client. Importantly, the court noted that,
while the attorney may have an ethical duty to communicate information to
successor counsel, only actual property of the client must be returned."
5.
Document
Originals
Our policy is that
we do not keep original documents that belong to clients or others. If a client
provides us an original document, we scan it to our electronic file and make a
copy for our paper file folder and return the original to the client.
Therefore, the contents of our files regarding clients and their matters do not
contain any original documents belonging to the client. The only exceptions to
this are as follows:
i.
Original will of
a decedent, which we file immediately with the Clerk.
ii.
Evidence for
lawsuits, which is filed with the Court or returned to the client at the
conclusion of the case.
6.
Client Copies
Our policy
is to keep our clients informed by providing them copies of documents that we
receive and that we send regarding their matter at the time they are received or
sent. It is the responsibility of the clients to maintain their copies of
documents for their own files.
7.
Shredding Paper
Files
Paper file
shredding is performed at the lawyer's direction by an outside service provider
in such a manner that the provider cannot view contents of files. Shredding is
observed by the lawyer or legal assistant. Paper file folders can be shredded
at any time upon the lawyer's direction as long as they have been scanned and
uploaded to the office server because the electronic files are the office's
files regarding clients and matters. When a paper document is scanned and
uploaded to the electronic file on the office server, the paper document will be
filed in the paper file folder, which can be shredded upon the lawyer's
direction (see exception above for original documents).
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For a sample government policy, see the U.S. Department of Commerce policy "Managing Electronic Records."
For more information about electronic record keeping in general, see the Association for Information and Image Management website at www.aiim.org.
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James W. Martin is a probate, real estate, and corporate
lawyer in St. Petersburg, who has written for the Florida Bar Journal and News,
ALI-ABA Practical Lawyer, and West Publishing, and has more information on his
Web site, www.jamesmartinpa.com.
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