Law 20 File and Law Library Management Confidentiality, Privileged Communications, and Attorney Work Product

Objectives Discuss why file management is important. Explain centralized and decentralized filing systems. Discuss the importance of closing and purging files. Explain why library ordering should be centralized. Give examples of how law library costs can be reduced.

File Management A poor file system typically has some or all of the following problems: 1) Files are lost and cannot be found. 2) Files are messy and disorganized. 3) Office staff is unclear about how the filing system works. 4) Attorneys and legal assistants do not trust the file system and keep their own files, or keep the office’s files in their possession. 5) Staff is constantly aggravated and frustrated over the file system. 6) Large amounts of time and money are wasted trying to find files and information. 7) Poor-quality legal services are given to clients due to the poor filing system.

Filing Methods and Techniques It is essential that each case or legal matter be maintained separately. Even if one client has several legal matters pending with the office, each case/legal matter should have its own separate file and should be given its own file number.

Filing Methods Alphabetic Systems Numerical Systems In an alphabetic filing system, cases are stored based on the last name of the client or name of the organization. In offices with a large number of cases, an alphabetic system may not be the best kind of filing system. Alphabetic systems are difficult to expand and can mean constantly shifting files to make room for more. Numerical Systems In a numerical filing system, each case or legal matter is given a separate file number. Numerical systems solve some of the problems of alphabetic ones, such as constantly needing to shift files and having multiple files with the same name (e.g., John Smith).

Filing Methods Bar Coding Bar coding is a file management technique in which each file is tracked according to the file’s bar code. Each time a user takes a file, the file’s bar code and user’s bar code are scanned into a computer. “Paperless Office”—Electronic Document Management Document management software organizes, controls, distributes, and allows for extensive searching of electronic documents, typically in a computer-networked environment. In a “paperless office” environment, all information is stored electronically. Document management software easily tracks and stores computer files that are already in an electronic format, such as word processing, e-mail, and spreadsheet files. Document management software can also accommodate hard copy documents through the use of imaging. Imaging uses a scanner to capture an image of a document. That image is stored electronically and can be retrieved later. Document management software advantages include: Being able to share information across vast distances Tracking and reporting capabilities Reduced instances of misfiling Ability to easily and quickly create a backup copy of information Reduced space and storage costs Ability to quickly search and sort information

Filing Methods Corporate, Government, and Legal Aid Filing Methods Corporate law departments and government departments may arrange their matters differently. They may file matters by subject, by department, or by other means that suit their particular industry or need. Legal aid offices typically file cases alphabetically or even geographically, by city or county. Centralized v. Decentralized A centralized file system is where a file department or file clerk stores and manages all active law office files in one or more file rooms. In a decentralized file system, files are kept in various locations throughout the law office, such as each department storing its own files or each attorney keeping his or her own files.

Opening Files When a new or existing client comes into the office with a new legal matter, a new file should immediately be opened. The opening of a new file should be standardized and require certain information about the legal matter. A file opening form (sometimes called a new client/matter form or case sheet) is customarily completed when opening a new file. The file opening form is used for a variety of purposes, including to check potential conflicts of interest, to assign a new case number and attorney to the matter, to track the area or specialty of the case, to set forth the type of fee agreement and billing frequency in the case, to enter the case in the timekeeping and billing system, to make docketing entries (such as when the statute of limitations in the matter might run), and to find out how the client was referred to the law office.

File Format/Internal File Rules Many offices use separate manila files for subdivisions in the same case, in order to differentiate information in the same file (e.g., having files for “Accounting,” “Discovery,” “Pleadings,” “Client Correspondence,” and so forth). The individual manila files are typically stored in one or more expanding files, so that all of the files for one case are kept together. Many offices also use metal fasteners in the manila files to hold the papers securely in place. The exception to this is original documents that should not be punched. Instead, they should be maintained separately, and a copy should be put in the regular file. Information in each manila file is placed in chronological order, with the oldest information on the bottom and the newest on top of the file. This gives the user a systematic way of finding information.

Closing, Storing, and Purging Files After a legal matter has come to a complete conclusion and the final bill has been paid, the file is typically closed, taken out of the storage area of active files, and boxed up and kept in the office’s basement or at an off-site storage facility (for a certain number of years until it is destroyed). A closed file is sometimes called a “dead file” or a “retired file.” Once a case is closed, some offices give it a new number to differentiate it from active cases.

File Management and Ethics Conflict of Interest Checks Should be made immediately to ensure the law office has not represented an adverse party or would have another type of conflict. Client Property Be careful when closing files, and especially when destroying files that may include documents or other information that was given to the attorney by a client. Rule 1.15 of the Model Rules of Professional Conduct states: (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. . . . Other property shall be identified as such and appropriately safeguarded. . . .

File Management and Ethics Duty to Turn Over Client Files When Client Dismisses Attorney In many states, an attorney also has a duty to turn over to a client his or her file when the client decides to fire an attorney and to hire another attorney to represent him or her. What must be turned over to the client depends on the ethical rules and case law in your state. In re Cameron Destruction of Records of Account Rule 1.15(a) of the Model Rules of Professional Conduct states the minimum rules for how long attorneys should keep client account/fund information: Complete records of . . . account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation. Law offices should carefully maintain accurate and complete records of the lawyer’s receipt and disbursement of trust funds in every case. Confidentiality An attorney’s duty to maintain the confidentiality of client-related matters should be a factor when considering a law office file management system. Files must be maintained so that sensitive information about a case or client is maintained. Also, the confidentiality rule does not stop once the case is closed. Law offices should be careful to destroy or dispose of files in a manner consistent with the confidentiality requirements.

Law Library Management Developing a Library Collection CD-ROM Currently, state statutes, federal statutes, state reports, bankruptcy reports, tax reports, federal reports, and many other legal publications are available on CD-ROM. A single CD-ROM can hold about 300,000 typed pages. CD-ROMs take up almost no space on the bookshelf and can be searched using keywords like “Westlaw” or “LexisNexis.” Cataloging and Classifying the Collection Cataloging is the process of listing and organizing the inventory of a library. Other offices may simply group materials together by having a tax section, labor section, real property section

Ethics: Confidentiality Clients will not provide full disclosure without the assurance of confidentiality Attorneys have fiduciary duties with clients, including duties of confidence, loyalty and good faith. Confidentiality encompasses both Attorney-client privilege Work product

Attorney-Client Privilege A client who seeks a lawyer’s advice may invoke an unqualified privilege not to testify and to prevent the lawyer from testifying as to the communications made by the client in confidence to the lawyer. Only the client may waive Only legal advice is covered Lasts indefinitely

Attorney-Client Privilege – Disclosure to 3rd Parties Privilege extends to communications made to or in the presence of attorney’s agents, even independent contractors Must be made in a confidential setting Not in presence of unnecessary parties Client can waive by repeating communication to nonconfidential third parties or by expressing intention to make communication public

Attorney-Client Privilege Matters not covered: Identity of client Whereabouts of client Fee arrangements between lawyers and client Preexisting documents cannot be brought within protection of privilege Physical evidence of crime

Attorney-Client Privilege Inadvertent Disclosure May destroy privilege What if you receive privileged documents? Refrain from reviewing Notify the sender Follow instructions from the sender or seek a resolution from the court

Exceptions to Attorney-Client Privilege Malpractice suit brought against attorney by client When attorney concurrently represents two clients Future crime or fraud

Work Product Materials prepared by attorneys in anticipation of litigation is protected Mental impressions Strategies, theories, related legal research Informational material Factual research material – witness statements

Ethics of Confidentiality CA Bus. & Prof. Code § 6068(e)(1): It is the duty of an attorney to do all of the following: (e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. Rule 3-100 (B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

Confidentiality and the Paralegal Do confidentiality rules apply to paralegals? Establish Policies and Procedures