All professionals should maintain a consistent and carefully considered practice for closing files. Don’t rush to send the file to the shredder. Don’t push the boxes into a dusty warehouse. Rather, best practices mandate that all professionals, notably attorneys, engage in a series of important tasks when closing a file. Poor practices at the end of an assignment can lead to conflicts issues, document retention woes, client confusion or worse. Take for example the attorney in Maryland who was recently disbarred for conduct that could have been prevented with a proper close file checklist.
A recent ethics case out of Maryland emphasizes the need for a uniform and thorough system for closing cases. An associate attorney worked at a small firm, but intended to establish his own practice. With this aim in mind, he allegedly altered case documents to make it seem as if his cases were not meritorious. For instance, in lead paint cases, the associate tampered with documents to suggest that certain clients had normal blood test results, when in reality they had tested positive for lead. He also prepared letters of termination to make the files seem “closed” to other associates at the firm. His goal was to file new actions on behalf of these close-file clients when he set up his own law office. But, he got caught.
The court held that this behavior violated the law as well as Maryland’s rules of professional conduct, and disbarred the associate.
How can your firm avoid a similar situation? The key is to establish a sound case-closing protocol with collaborative input from colleagues tasked with closing cases. Some tips include:
- Promptly close files. Failure to do so could result in problems during conflict check procedures.
- Check the box. Develop a “file closing checklist.”
- Get paid. Only close a file after the final action has been completed and the bill has been paid in full. Don’t forget to refund any fees or advances that have not been earned.
- Get the memo. Consider a “closing file memo” requirement. Such a memo will provide a concise summary of the case, and creates a permanent record of your representation.
- Sign off. Confirm in writing any oral communications with clients regarding file closings.
- Keep tabs. Implement a system wherein the closed matter is flagged for review in a few months, to ensure there are no loose ends remaining.
- Remember the client. The client owns the file, even after the case is closed. Similarly, the duty of client confidentiality continues after files are closed.
- Go paperless. This will save time and space. Consider using a “closed” stamp and/or other system to indicate closed matters, and then mark the planned destruction dates on the folders. Strip the file of extraneous papers. Keep an index of all closed files as well as their locations. Consider converting the paper file to electronic format.
- Recycle. Develop a system where the briefs, research and other information from closed cases can be easily accessed for use in future cases.
- Create a closed case “purgatory”. Reportedly, since 95% of all references to closed cases occur within a year of the closing date, you may decide to create an “interim” status for those files for a few months after they close.