File management

A client’s file is an essential aspect of practise. However, given the importance of the file and the potentially complex file retention process, it is remarkable that the SRA Handbook does not specifically deal with file retention. For solicitors there are three key issues to consider:

• What to retain on file
• How to store the file
• How long to keep the file

Organisation

It may be basic, but the question of what to include in the file should be considered. It is important to remember that the file is not the property of the solicitor but, in fact, belongs to the client, and in most cases, they will be entitled to see it. In the event of a complaint or a claim made against the firm at a later date, the file will form the basis of any defence. Whilst it seems obvious, it is essential that every fee earner is aware of the importance of a well organised file; this means one which does not contain any unnecessary or duplicate documents, such as draft letters or informal notes.

Storage

It is important to consider where the file is kept; in the office, off-site, or electronically. Electronic filing solutions offer many advantages; however, the practice needs to consider; what documentation must be kept in its original form, whether the electronic storage should be addressed in engagement letters, whether there is a risk of corruption and be aware of the additional requirements under the Data Protection Act 1998. A risk assessment should take place in respect of security, flood or fire risks. Furthermore, in the event a third party storage company is used, the risk of liquidation should also be assessed. Firms should also think about whether they allow files to be taken out of the office, whether they are in paper form or stored on a memory stick, and the unique risks these distinctions present. It is also essential that a central file storage record is kept and maintained.

Closure

Before closing a file, it is worth checking that all the work has been completed, all undertakings have been discharged and no monies are outstanding. Once the firm is satisfied there are no outstanding issues, original documents should be returned to the client where possible, and a record of the return date should be made by the firm.

The firm should retain a copy of each file. However, there is no standardised minimum retention period meaning the retention of files needs to be decided on a case-by-case basis, taking into account the area of law and the limitation periods. It is a good idea for firms to allow an additional year within minimum retention periods to compensate for claims made towards the end.