I feel compelled to add a proactive twist to this to set folks on a path
that might help them when this comes up in the future ...

1. Get with your GC and help them draft language to be included in EVERY
engagement letter with outside counsel that addresses the retention of your
case file(s).  Be sure it is clear that your expectations cover the entire
file - paper and electronic material.  Many law firms are now including this
as standard fare, but some still don't (or don't do it consistently).  Also,
if your outside firm does include their own language, understand it is
negotiable.  If you don't like what they propose, suggest something else
that you feel will be more suitable for your situation.  It is not
reasonable to expect a law firm to store your property free of charge for a
long period of time, but they may be willing to do so for a couple of years
(likely addressing their desire to make a copy for themselves).

2. For any engagements that happened in the past or are actively occurring,
contact that responsible outside counsel and discuss file retention NOW.
Get something in writing, amending the engagement letter if need be.

3. Follow up with outside counsel to ensure your wishes have been carried
out.  I have a client who requires we destroy their case files after 10
years past conclusion of representation, so they are sure their retention
schedule is carried out regardless of where the property is located.
Periodically they check in to make sure we haven't forgotten about the
requirement.  This is a risk management exercise for the client, and we're
happy to oblige.

3a.  As I was typing this I saw Alex's question come in:  [paraphrasing]
What are the copyright, privacy, etc. implications when a law firm decides
to retain a copy of a client's case file?  Doug Smith's response is right
on.  If the firm keeps a copy, their ethical obligation to protect the
client's interests remains intact so long as they have possession of the
file (plus, firms have other ongoing obligations to former clients as
well).

Again, you should address this issue in your contract with the firm,
spelling out exactly what you expect will happen to your file at conclusion
of the case.  For instance, you might ask that any portions of the file that
will be retained for "form file", knowledge management or other internal
use/re-use/training purposes be thoroughly redacted to remove any
identifying information at the conclusion of the matter.  You certainly
should ask the firm to destroy the file no later than you will since a
longer retention period exposes you to increased risk.

4. You should also consider if there are other professional service
providers who may be retaining records that are actually your property and
follow a similar path ... consultants, contractors, outside accountants,
etc.

I absolutely welcome the opportunity to work with the records managers of
the companies my firm represents to ensure their needs are met as well as
those of my firm.  I suspect most, if not all, of my law firm RM colleagues
feel the same - we're here to help!

Julie

-- 
Julie J. Colgan, CRM

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