Hello Jan
Not an easy question to answer as there are many things
to take into consideration.
Some time ago the Law Society provided guidance on
document retention, well known as 'annex 12A' this stated that there was no
legal requirement to keep client documents. However, it went on to say that
client transaction files would inevitably contain documents that belonged to
either the solicitor or client. An example list was provided
and guided the reader to 'Cordery on Solicitors' for further info,
unhelpfully Cordery contradicted Annex 12A as to who owned what. Further,
it recommended that the solicitor should not destroy documents owned by the
client without the clients consent.
Annex 12A has, in some respect, been replaced by the
SRA code of conduct, rules 2 & 5, client care. (I think, have not read them
lately) and still refers you to Cordery, although in relation to matters of
lien
So, the question still remains who owns what in a
transactional file and the need to contact the client to agree to destruction.
This in many cases has been
addressed by the
Terms of Appointment of a lawyer. Virtually all law
firms now have a clause about transferring
document ownership to the lawyer,
some will have their standard T&C available on websites, but none have a
consistent time period for taking ownership of the files.
Done and dusted, after the chosen time period has
elapsed documents within the files are owned by the lawyers and
they can do what they want with them! Well, not exactly. It assumes
that the client has agreed to the standard
T&C, it's possible that the client
have their own retention rules and want the lawyer to adhere to them,
this changes the standard T&C's. Perhaps the client was not aware
that documents contained within the transactional files belonged to
them, was not mentioned at time of appointment, was there an error
in client care! Additionally; there could be documents from third
parties, what happens to them?
And finally, and I'm
no authority on this element, I am told that even if a client accepts the
T&C of appointment but has some form of ownership change during the
retention period, they don't have to comply with the T&C's agreed by a
predecessor. That to me appears to be a legal argument and I'm no
lawyer...
Therefore, before
setting any retention and disposal periods it may be wise to consider:
- document
ownership;
- client care was
adhered;
- what T&C's have been
agreed; and
- are the T&C's still in
force
Some types of law transactions will
need further consideration - pension schemes, intellectual property and
possibly personal injury, especially anything asbestos related. If
your law firm is international the transaction might be cross jurisdictional,
other countries will have different laws.
Once everything has been considered, there
are probably things I have missed, it is still a risk based decision, and
by nature lawyers are
risk-averse.
I have often thought I have built
mountains out of molehills with these arguments and gone round in circles. If
anyone can put me on the straight and narrow, would be much appreciated.
Regards
Robin
_______________________________________
Robin Scally
Records Manager
Freshfields Bruckhaus Deringer
LLP
[Just in case] - The above does not constitute
legal advice or is the opinion of Freshfields. It is the personal thoughts
of the writer.
From: The UK Records Management mailing
list [mailto:[log in to unmask]] On Behalf Of Jan
Zoontjens
Sent: 16 June 2010 23:27
To:
[log in to unmask]
Subject: Retention and disposal
in law firms
I am a secretary in a law firm with some responsibility of closing files
when cases are completed and have been searching for recommended retention and
disposal information for the various file types which the firm acts in. I've
tried the Solicitors' Regulatory Authority and the Law Society but not been
able to find any useful information. Would appreciate any advice anyone
can give.
Regards
Jan Zoontjens
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