Document Retention & Destruction.
How client files are closed, retained, reviewed, and ultimately destroyed. The procedures that apply to every matter, from active file to authorized disposition.
How client files are closed, retained, and destroyed.
This policy sets out the procedures the firm follows for closing client files, establishing destruction dates, storing closed files securely, and destroying files in a manner that maintains client confidentiality and complies with applicable laws and professional obligations. It applies to every client file, whether physical or electronic, across every practice area.
Purpose.
Why this policy exists.
The purpose of this policy is to provide procedures for the closing, retention, and disposition of client files.
Definitions.
The terms used in this policy and what they mean.
- "Disposition of client files" means the final action taken with the contents of client files, and includes destruction, transfer to the firm's precedent bank, and permanent retention.
- "Client file" means the physical paper folder containing the physical documents related to the matter, or the electronic folder or directory containing the electronic files, documents, data, or information related to the matter (referred to in this policy as "file").[1]
- "File destruction date" is the date on or after which a file may be destroyed.
- "Lawyer" is the lawyer who has carriage of the file, or another lawyer in the firm who has been assigned responsibility for the file.
Closing the file.
The conditions that must be met before a file may be closed, the steps to take before closure, and the confirmations required by this policy.
When a matter has been completed, the lawyer shall review the file to determine if the file may be closed.
No file shall be closed unless:
- the retainer has been completed;
- a final account, if any, has been forwarded to the client;
- all accounts have been paid or forgiven;
- there is a final distribution and accounting of all trust balances relating to the file;
- client property has been returned to the client; and
- there are no outstanding undertakings or trust conditions.
Prior to closing the file, unless otherwise agreed, client documents shall be returned to the client.
At the lawyer's discretion, copies of client documents may be retained in the file.
At the lawyer's discretion prior to closing the file, the file shall be stripped of the following:
- duplicate copies of documents;
- draft copies of documents, unless the history of creation of the document might be an issue in the future;
- any documents that can be reproduced from another source, such as pleadings and copies of registered deeds or mortgages.
Prior to closing the file, at the lawyer's discretion, copies shall be made of any documents that may be used as precedents and placed in the firm's precedent bank for future use. The lawyer will ensure that such precedent documents are stripped of all personal information within the meaning of the Personal Information Protection and Electronic Documents Act (PIPEDA), and that client confidentiality, in accordance with the Rules of Professional Conduct, is maintained with respect to any other information that identifies the client.
No file shall be closed unless the lawyer reviews the file and determines whether the file is appropriate for destruction at a future date or whether the file should be retained permanently.
If the file is appropriate for destruction, the lawyer shall establish a date for the destruction of the file (the "file destruction date").
No file shall be closed unless a letter has been sent to the client by ordinary mail or email advising the client that:
- the matter has been completed;
- all documents and property belonging to the client have been returned to the client, or, alternatively, confirming any arrangement between the lawyer and the client regarding the storage of the client's property;
- in accordance with the firm's policy, if the client requires copies of documents from the closed file, whether the file is stored electronically or physically, an administrative fee will be charged to retrieve, review, copy, or forward such documents; and
- a file destruction date has been established and the file will be destroyed on or after the file destruction date without further notice to the client.
If documents from the file are returned to the client, copies shall be made of all documents that cannot be readily obtained from other sources, or that, in the lawyer's judgment, the firm may require in the future.
When the file is closed, the file shall be moved from an active status to an inactive status.
The firm shall maintain a list of closed files, including the date that each file was closed.
Establishing the file destruction date.
How the destruction date is set for files appropriate for destruction, how review dates are handled for files retained permanently, and the factors that inform the lawyer's judgment.
If the lawyer determines that the file is appropriate for destruction at a future date, the lawyer shall establish:
- a file destruction date no earlier than fifteen years after the date that the file is closed; and
- a date for the review of the file no earlier than 90 days prior to the file destruction date (the "file review date").
If the lawyer determines that the file is to be retained permanently, the lawyer shall establish periodic review dates so that the lawyer may review the file to determine whether circumstances have changed and whether the file is appropriate for destruction.
The lawyer will exercise professional judgment in determining whether a file is appropriate for destruction and in establishing a file destruction date. In making these decisions, the lawyer shall consider:
- the length of time the lawyer is required to retain documents pursuant to specific laws or regulatory provisions;
- the client's age and capacity;
- the likelihood that the lawyer or law firm will require the file for the future representation of the client;
- the length of time that the lawyer or law firm may be liable for claims involving professional negligence; and
- the likelihood that the lawyer or law firm will require the file because of the nature of the matter, the outcome of the matter, or the fact that the file involved a difficult client.
All file destruction dates and file review dates shall be entered into the firm's tickler system.
Retention of closed files.
How closed files are stored, whether physically or electronically, and the fees that apply to any subsequent requests for copies.
Closed files shall be stored in facilities that are physically secure, so as to maintain client confidentiality and to protect against damage or loss. Alternatively, at the lawyer's discretion, closed files shall be stored electronically and any physical documents comprising the closed file shall be shredded. Any subsequent request for copies of documents from a closed file will attract an administrative fee, as outlined in section 3.9.
File destruction.
The review that must occur before destruction, the confidentiality requirements that govern destruction, and the records maintained for each destroyed file.
The lawyer shall review the file on or after the file review date and prior to the file destruction date to determine whether circumstances have changed since the establishment of the file destruction date and whether the destruction should proceed.
All destruction of files shall be conducted in a manner that ensures the maintenance of client confidentiality. Requests for copies made prior to destruction will be subject to the administrative fee set out in section 3.9.
A list or database of destroyed files shall be maintained.
A record of destruction or disposal shall be maintained. The record shall include the following information: the name and address of the client, the file number, a brief description of the matter, the file closure date, the file disposition date, and the name of the lawyer who authorized the file disposition.
