Hi Jim,

Of course not knowing where your firm practices, you will need to do your
own research to cover the laws and ethics opinions that cover the scope of
your firm, however I will share this with you from my experience trying to
convince lawyers that it is okay to image then destroy the hardcopy (of most
stuff).

The two most common arguments I've run into from lawyers on this subject are
that 1) it has the potential to break the lawyer's fiduciary duty, typically
referring to Rule 1.15, and 2) it is in opposition to the Rule of Best
Evidence.

Neither of these arguments holds up under scruitny, assuming you approach
imaging in the right way.

The most important aspect of "going paperless" is HOW you go paperless.  If
you are considering instituting a program for imaging hardcopy material, it
is incumbent upon you to develop your program in such as way as you can
satisfy the Rule of Best Evidence with the image (which usually also
satisfies their concerns with Rule 1.15 as well, however their concerns with
that are authenticity of the record and the assurance that it will be
maintained in accordance with the Rule).  That means that you will need to
construct and document your imaging procedures so you are able to prove
authenticity of the content - that it is a true and accurate representation
of the original.  Your documentation needs to include the entire process up
to and including how you audit it to ensure quality and accuracy.

There will be some material you must maintain in hardcopy form, even if you
choose to image it for convenience - things such as original evidence and
other material provided to your firm by the client to support the
representation (tax documents, pay stubs, etc.).  However, my advice to the
lawyers I have worked with over the years is, why retain the hardcopy at all
- image it so you can use the content as needed for the engagement and
return the original to the client immediately.  If you need it for court for
some reason, get it back from the client.  Or, for those lawyers who insist
on taking the added risk of holding onto originals/client property during
the course of the engagement, make sure you are giving it back to the client
at the conclusion so you don't have to send it to storage.  You can still
image it so you have a copy of it to refer back to in the event the matter
is ressurected in the future, or in order to defend yourself from a claim
(hopefully that never happens!), but there is inherently more risk in
keeping that stuff than there is in giving it back.

One last thought - before you take steps to digitize (almost) everything (or
anything, ideally), make sure you have the technology, policy and
procedures in place to manage the content as records.  I've seen plenty of
folks rush head-long into imaging because of it's many business-use benefits
but then feeling the pain of bloated repositories and a nightmare of a time
trying to apply retention and effect disposition.  Same problem we're seeing
with the rush into electronic medical records ...

And now, off to watch the ticker tape parade in honor of the College
Baseball National Champions - the University of South Carolina Gamecocks -
that is set to roll past my building in a few minutes.  :)

-- 
Julie J. Colgan, CRM

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