While this information is specific to Wisconsin Lawyers, it raises many of the same issues and ethics concerns facing lawyers throughout the United States. For Wisconsin Lawyers, the Wisconsin Supreme Court Rules are the place to begin any investigation when it comes to dealing with client records and property. Not only do existing clients need to be of concern, but what about files and property for clients that you can’t locate, are there fiduciary responsibilities that are raised? While many attorneys think of files as only consisting of paper for pleadings, correspondence, notes, etc., client files may also contain other “property” of the client or a third party. Examples include stock certificates, checks or other negotiable instruments, instruments of title for real and personal property, etc. SCR 20:1.15(a)(4) and (10) provides definitions of property that is considered as Fiduciary property or Trust Property. This is important as SCR
20:1.15(e)(6) provides that:

(6) Record retention. A lawyer shall maintain complete records of trust account funds and other trust property and shall preserve those records for at least 6 years after the date of termination of the representation.

This Rule clearly establishes that records for trust accounts and trust property must be maintained for a minimum of 6 years after a lawyer has ended representation.

SCR 20:1.16 also provides additional information, although not as definitive as SCR20:1.15, on protecting a client’s interests including rights to papers in their file.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

SCR 20.1.6(a) below, establishes the ongoing duty and obligation of Wisconsin Lawyers to protect client confidences when disposing of files:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d).

There is no time limit on this obligation and this Rule adds one more concern when deciding 1) how long to keep client files; and 2) how they are destroyed, if and when the decision is made to destroy them.

There are two Wisconsin ethics opinions which address this question and provide a framework to consider. The first opinion E-84-5, referenced informal opinions of the American Bar Association. Unfortunately, as with many such opinions, there was a dearth of details leaving the reader with their question still unanswered. However, opinion E-98-1, titled Disposition of Closed Client Files provides greater detail and suggestions to follow. One pertinent excerpt states:

…while lawyers should not have the burden of maintaining client files forever given the attendant costs and economic burden, it is clear that certain safeguards should be followed before a file is destroyed.

1. The lawyer has specific responsibility to hold client property in trust under SCR 20:1.15. The lawyer must be satisfied that the files have been adequately reviewed. To do otherwise, such as a spot check, would run the risk that client property or original documents would be destroyed.

2. The existence of client property, or information that could not be replicated from other sources if necessary, and the age of the materials in the files are all factors that should be considered in determining the reasonableness of the decision to destroy the file. For example, client property or original documents such as wills or settlement agreements ordinarily should not be destroyed under any circumstances, and the level of effort to locate a missing client should be more diligent where there is actual client property involved than where, for example, the file is a long resolved collection file. See S.C. Ethics Op. 95-18, ABA/BNA Man. Prof. Conduct 45:1208.

3. At a minimum the files should not be destroyed until six years have passed after the last act that could result in a claim being asserted against the lawyer. Cf. Kaap, The Closed File Retention Dilemma, 1 Wis. B. Bull. 25 (Jan. 1988).

4. In the ideal situation, the lawyer would have discussed the issue of file retention/destruction in either the engagement letter with the client or in the letter terminating or completing the relationship or engagement. Absent an express agreement with the client, the lawyer should at a minimum try to reach the client by mail at the client’s last known address, should advise the client of the intent to destroy the file absent contrary client instruction, and should wait a suitable period of time (perhaps six months) before taking action to destroy the files. See Los Angeles County Ethics Op. 475 (1993), ABA/BNA Man. Prof. Conduct 1001:1703.

5. The lawyer should keep a record or index of files that have been destroyed for a reasonable period of time. See ABA Informal Op. 1384.

Opinion E-98-1 raises the interesting possibility of limiting the time necessary to maintain these records by including a provision in your representation agreement that specifically details your record retention policy. There is no specific rule or opinion that prohibits such an agreement between the lawyer and the client. However, any such agreement will not allow you to abrogate specific requirements such as the 6 year trust property requirement of SCR 20:1.15(e). What this opinion and other resources, including Ann Massie Nelson’s April 2003 Wisconsin Lawyer article titled Managing Records Effectively or the very detailed review by Lee R. Nemchek in her article titled Records Retention in the Private Legal Environment: Annotated Bibliography and Program Implementation Tools, clearly show is that there is no simple and definitive answer to this question. Since the Wisconsin statute of limitations for legal malpractice is 6 years after the date the error is discovered, not when the representation ended, there will be varying dates depending on the type of file. A real estate file disposal date will be different than an estate planning file. Additionally, malpractice suits are not the only potential means of action by a party who is not happy with their representation: you shouldn’t forget the ability to file a grievance with the Office of Lawyer Regulation.

A party has 10 years to file a grievance subject to tolling for a disability or active concealment by the attorney. The full text of SCR 21:18 states:

(1) Information, an inquiry, or a grievance concerning the conduct of an attorney shall be communicated to the director within 10 years after the person communicating the information, inquiry or grievance knew or reasonably should have known of the conduct, whichever is later, or shall be barred from proceedings under this chapter and SCR chapter 22.
(2) The time during which a person who knew or should have known of the attorney’s conduct is under a disability as provided in Wis. Stat. § 893.16 (1997-98) and the time during which the attorney acted to conceal the conduct from or mislead the person who knew or should have known of the conduct regarding the conduct are not part of the time specified in sub. (1).

The ethics opinions didn’t address this issue, but SCR 21:18 needs to be taken into consideration when establishing a file retention and destruction policy. Furthermore, some malpractice carriers, including Prolegia, recommend a 10 year file retention period for the lawyers they insure. Prolegia provides a sample file retention policy for review and adaptation by their customers. Another sample policy is included with Nemchek’s Records Retention in the Private Legal Environment: Annotated Bibliography and Program Implementation Tools article.

While you can opt for a 6 year retention period, a better policy would be to maintain your records for 10 years, unless varied by your representation agreement and not running afoul of the Supreme Court Rules. Any policy that you do create, to be successful, should strive for 3 things:

1 – Be straight forward, concise and as simple as possible
2 - Clearly detail both the firm’s and the client’s duties and obligations
3 - Must be implemented and followed by everyone in the firm!

Additional sources to review:

Materials on Client File Retention – American Bar Association Center for Professional Responsibility

File Retention Policies and Requirements By Kenneth L. Jorgensen – Minnesota State Bar Association

When May I Destroy My Old Files? – The Florida Bar

Developing a File Retention Policy for Your Firm – State Bar of Georgia

The reviews are starting to come in on the first venture between Palm and Microsoft on a convergence phone and PDA combination. The Treo 700W is the latest iteration of the Treo line that started with the Treo 600 and the more recent Treo 650. Many see the Windows Pocket Mobile OS as a replacement for the popular BlackBerryhandhelds from RIM . With the latest setback in the ongoing battle between RIM and NTP, some are worried about a shutdown of BlackBerry service by court injunction . Microsoft you can be sure is watching the ongoing BlackBerry woes with a great deal of interest since it believes that handhelds based on its mobile OS are the perfect replacements. In a January 25, 2006 article posted on MacWorld , Scott Horn of Microsoft state:

Microsoft is listening eagerly to those concerns. RIM’s legal problems are “causing a lot of customers to come to us and ask about it,” said Scott Horn, general manager for the mobile and embedded devices group, in an interview this week in London.

It may be that Microsoft is hoping that new handhelds such as the Treo 700w will help it win over BlackBerryusers. It seems that until this product, the form factor of most MS mobile OS devices were larger and not as user friendly as BlackBerryand Treo units. With the advent of the Treo700w, Microsoft has installed it’s OS in a popular and familiar handheld unit that is similar and in some ways superior to the BlackBerryunits it faces.

While being very similar to the Treo650, there are some differences including a lower resolution screen. In a current review of the Treo700w, eWeek.com finds in a current article :

The Treo 700w takes a step backward, however, with a 240-by-240-pixel display that’s readable but noticeably less so than that of the Treo 650.

The article also shows that Microsoft still has a ways to go in making its interface more user friendly. The review finds:

Along similar lines, we prefer the interface of Palm OS over the Treo 700w’s Windows Mobile environment: The Palm OS-based unit manages to fit more information into its screens and does so more clearly.

However, in the end, eWeek.com found more to like than dislike about the new device and stated “…we found the 700w a strong smart-phone contender…”

In the end, it’s going to come down to a market place decision as Microsoft continues to try and gain market share from RIM. In this battle, if it wasn’t for the pending litigation RIM is involved in, Microsoft would be David against RIM’s Goliath.

The ABA TechShow celebrates its 20th anniversary this April 20-22 in Chicago, Illinois. Billing itself as “The World’s Premier Legal Technology Conference & EXPO”, TechShow offers a wide and varied mix of presentations, demonstrations and vendors. With 14 educational tracks, there should be something for everyone.

I’m proud to announce that the State Bar of Wisconsin is a sponsor for TechShow 2006 and information can be found at the WisBar website . WisBar members can obtain a $100.00 discount using the code provided. If you register before March 10, 2006 you can also receive an additional $200.00 early bird discount.

As both a past attendee and past speaker, I’ve found TechShow to be a worthwhile and valuable experience, not only from the information presented but also the chance to meet and network with other attorneys and technology professionals. There is no other gathering in the country that brings together the likes of Jim Calloway , Ross Kodner , Tom Rowe , Nancy Duhon , Sandy Adams , Dennis Kennedy , Sharon Nelson and other renowned practitioners and technologists all at the same time.

Put it on your calendar, book your rooms and see you their.

I apologize for having been remiss in posting: the end of the year and the first part of January were hectic with closing my law practice, taking a real vacation and starting at the Wisconsin State Bar as their new Practice Management Advisor.

The implementation and use of technology in the law practice is only going to continue to increase and probably at a faster pace than in prior years. You need to decide whether you are going to try and at least stay current or if you’re going to fall behind so that in another 12 months you are totally unaware of what is available and how it could have helped your practice. I’ve created a list of 10 resolutions for 2006 to help you stay ahead of the technology pace.

I think it appropriate to start the New Year with some resolutions for you to consider:

1) Resolve to evaluate your technology from top to bottom. Look at all of the steps it takes to open a file, find work product and get out your bills.

2) Resolve to start using Practice Management Software. If you have it, then resolve to use it.

3) Resolve to get training on all of your software for every member of your staff. Training is often the most costly portion of starting to use software, but it is also the one thing that will provide the greatest return for the dollars spent by providing a solid foundation of how to use it.

4) Resolve that if the evaluation from #1 above shows that you are entering the same information multiple times, take steps to minimize, if not eliminate this time thief. This may mean that you have to make changes to some of the products or workflow in your office, but in the long run, it will more than pay for itself.

5) Resolve to create a plan for continual hardware upgrades. While most small offices can’t afford to replace everything in the office, if you create a plan, you can start replacing 1 item every 6 months and spread the financial burden over a reasonable period of time.

6) Resolve to reduce the need to handle paper: get a sheet fed scanner that can scan at least 15 pages per minute (ppm) for single sided copies (simplex) or 30 images per minute (ipm) for double sided copies (duplex). And use the industry accepted Portable Document Format (PDF) to store your scanned images.

7) Resolve to either use a Document Management System (DMS) that is either included with a Practice management solution or a product like Worldox. Or, create a standard naming and storage format in a formal policy and enforce it.

Resolve to implement technology that will improve your quality of life. Get a digital transcriber so you can take that trip and not feel guilty because you can email the transcription files to your office or to a service.

9) Resolve to explore internet based fax services such as Maxemail or eFax. You lose a lot of paper and gain forms already in a useable electronic format such as PDF that can be saved with your other electronic files.

10) Resolve to enjoy time that you are traveling to court or to meetings: get an MP3 player or portable game system. Products such as the Apple ipod, Creative Zen Micro, and Sony Play Station Portable (PSP) allow you to take your music with you and in the case of the PSP, games, movies and more. Don’t forget that they can also act as a storage device for moving and storing work files as well (think business expense.)