Catch-Up Withholding: The Difficulty in Acquiring Client Consent Following Representation

 
Previously, at the LOMAP Blog, we considered the potential effectiveness of moving to a paperless law practice, buttressed by an analysis of issues related to client inclusion in the process — specifically, we addressed the importance of acquiring client consent prior to the destruction of case files. But, what if you don’t gain the client’s consent to your proposed file destruction procedures at the outset of representation?
Well the short answer is that: it ain’t good; so, you shouldn’t wait. However, in the majority of scenarios, the waiting does not represent an intentional avoidance of a duty on the part of the attorney. Many lawyers don’t develop a document management program, including for file disposition, at the start of their practices; they institute a process, instead, at a later time: when they come to realize the importance of effective document management. Then, there are the lawyers who do not even consider file disposition until they’re ready to retire; at that point, they become deeply invested in removing the paper files they’ve attained throughout their career from their garage or attic. Of course, there’s no exception based on waiting it out: those attorneys can’t just get rid of their clients’ stuff; client consent must still be garnered.
Fortunately there are some suggestions available to attorneys facing the pass:
-The Board of Bar Overseers maintains an ethics articles repository, in which are included several pieces touching upon the topic of file management. Former bar counsel, and now judge, Dan Crane’s sequel to an original article (which the sequel supersedes) on the topic examines what happens when an attorney must acquire retroactive permission. The suggested time frame here is that client files (minus certain exceptions, listed in the article, that must be returned to clients, rather than disposed of) should not be destroyed until at least six months after clients have been provided written notice of the lawyer’s intent to dispose of the files in question. Of course, the client may not grant a blanket permission to dispose of whatever the lawyer may wish to destroy: a request may be returned, including for delivery of the file back to the client, or for continued storage of the file. If the file (being shipped) is large, or if the file (being stored) is to be sent to a remote location, however, the attorney can seek reasonable reimbursement for expenses — so long as the files could otherwise have been returned to the client, or destroyed.
-The Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois has issued a lengthy packet on closing a law practice, through which it offers a number of practical suggestions, including helpful checklists. At pages 3-4, the guide offers up useful inclusions (paraphrased clauses, really) for potential letters to clients respecting return of files in the event of a law office closure. Of course, some of those suggested line items would work equally well for the notification of clients concerning the disposition of files from a still-functioning law firm — assuming that Massachusetts lawyers would effectuate appropriate changes based on the Commonwealth’s ethics rules.
-The American Bar Association’s GP|Solo magazine published this article, on the subject of reducing client files, which covers a number of illuminating subjects, but addresses, at a granular level, the process of notifying clients of the firm’s intention respecting the disposition of case files – specifically, under the ‘Process’ section, appropriately enough. Though, you really should review the entire article, as it is an effective array of the major considerations under this heading.
The majority of lawyers I talk to who decide, midstream or end-career, to get rid of their client files are surprised to find that they just can’t dump them. From there, the emotional roller coaster moves to anger, over the existence of notification requirements. Bewilderment follows, with respect to just how to apply those requirements. In the end, however, the passage of time, does not eliminate the effect of the rules. There is no statute of limitations on client consent.
The moral of the story: Do it early, via fee agreement clause, rather than trying to reconstruct it late.
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Headstickers
George Harrison’s birthday was February 25. George Harrison was my favorite Beatle. I prefer his solo catalogue to all the others’. For the first 3 or 4 years I worked at LOMAP, I included a link to a different George Harrison song in every blog post I wrote. I bet you didn’t know that. You can go back and check; it’s true.
A few years ago, a recording of a lost solo for ‘Here Comes the Sun’ was uncovered.
You can compare the original, with the soloful version.
Personally, I like the original better; and, George offered up far better solos; but, it’s always nice to hear new music from the Quiet Beatle.