ACCD Best Practices Committee Maintaining Electronic Client Records March 7, 2012 The American Council of Chief Defenders is a national community of public defense leaders dedicated to securing a fair justice system and ensuring high quality legal representation for people facing loss of life, freedom, or family. The Mission of the American Council of Chief Defenders is to provide tools, strategies, mutual support, training, and information to chief defenders; to speak as a national voice for public defense; to promote best practices in the leadership, management, and administration of justice; and to support development and reform of public defense systems.
CONTENTS Introduction... 1 File Maintenance: General Principles... 1 File Contents... 1 File Retentions... 2-4 Electronic Client Records... 4 Recommendation Regarding Electronic Records... 4 Conclusion... 5 Summary of Survey Results and Accompany Comments... 6-9 Contact Information for Technical Assistance... 10
ACCD Maintaining Electronic Client Records Report 1 Maintaining Electronic Client Records Introduction This report highlights the need for defender organizations to address issues relating to electronic client records. Advances in technology have transformed the traditional law-office paper file, at least in part, to a series of electronic records related to client representation. Along with the advantages of electronic communication and storage of information come challenges in organizing and retaining electronic materials. Although the best practices for a specific organization will differ according to local rules, resources, and practices, this report provides general guidance and a summary of approaches used by defender organizations across the country. File Maintenance: General Principles The starting point regarding electronic records is an understanding of a law firm s general responsibilities regarding the contents of a client file and the maintenance of a file. Client files are helpful to the attorney during the representation because they allow access to materials that the attorney may need and they provide documentation as to earlier proceedings and events in the case. Client files are also helpful after the case has been completed, particularly when the client seeks postconviction relief or raises questions or concerns about the representation previously provided. File Contents Although there are undoubtedly variations in the exact contents of client files, lawyers have historically found that it is important to have (for each client) a file containing court documents, client correspondence, witness statements, pertinent research materials, and other case-related papers. In the context of criminal defense, major categories of records usually include the following (examples listed within each category): Court Documents Charging document (complaint or indictment) Motions Court Orders and Findings Scheduling Notices Other Records Filed in Court
ACCD Maintaining Electronic Client Records Report 2 Other Correspondence and Other Records of Communication Letters and materials provided to client, including notice or agreement regarding scope of representation Letters from client and notes of conversations with client Letters to and from court, prosecutor, and witnesses Witness Statements and Investigative Reports Police reports Reports and notes of defense interviews of witnesses Written statements of witnesses Pictures, diagrams, test results, and other investigative materials Research Materials Statutes Case law Jury instructions Legal analysis Checklists and other secondary materials In addition to the contents listed above, client files often contain an activity log that allows attorneys to record time worked on the case and to summarize the type of work performed. File Retention In addition to a general policy on file contents, a policy on file retention is a best practice in the area of client-related records. A file-retention policy serves three important purposes. Most importantly, such a policy protects clients by ensuring that their files are maintained and are accessible for a reasonable period of time. 1 Second, a policy helps to ensure compliance with statutes and/or ethical rules in the applicable jurisdiction that set forth minimum retention periods. 2 Third, a file-maintenance policy also assists agency staff by providing direction as to the period of time for which files must be retained. 1 See ABA Ethics Committee, Informal Opinion 1384 (1977) (although lawyers do not have a general obligation to retain files permanently, clients and former clients reasonably expect that their lawyer will not prematurely and carelessly destroy useful and valuable information that is not otherwise readily available to the clients ). 2 See subsection on Length of Time for Retaining Files, pp. 3-4 below. Applicable rules may be set forth in general statutes on public records, as well as in rules specifically directed to the legal profession.
ACCD Maintaining Electronic Client Records Report 3 Important considerations regarding file maintenance include notice to clients, length of time for keeping files, and organization of files. Notice to Clients Defender organizations should notify clients, at least in general terms, of the policy regarding file maintenance. Notice of the policy lets the client know that he or she has a certain period of time during which to request the file before the organization destroys it. The notice should provide instructions on how the client may request his or her file. If the policy is long or complex, it may be best to provide a summary of the policy. For example, an organization may reasonably decide that it should have several retention schedules, depending on the type of case involved. Rather than providing the full list to every client, the organization might advise clients of the minimum retention period ( we will retain your file for at least six years from the date that your case is completed, after which time it may be destroyed ). Notice may be provided at the beginning or end of the case. Written notice is preferable because it provides for both consistent content and documentation that notice has been given. The client may also refer to the written information when interested in obtaining the file. Length of Time for Retaining Files The retention schedule (length of time that the organization) keeps client files after completion of representation may differ for various case types. 3 For example, an organization may wish to keep files for the maximum period that the client could be sentenced in the case. The organization may wish to keep juvenile files at least until the client has attained age 18. If there is a period of time during which a conviction may be used to enhance a sentence, the organization may consider retaining files until the expiration of the applicable look-back period. 4 In all cases, the organization must ensure compliance with state statutes, ethical rules, and court decisions regarding file maintenance. Organization of Files The organization should have procedures for how and where files are stored. The organization needs to be able to locate files upon request, sometimes years after the attorney who handled the case has left the organization. Therefore, a typical procedure is for closed files to be stored centrally. Closed files may be organized by case type, client name, and date. Thus, one file drawer or other location might 3 See ABA Ethics Committee, Informal Opinion 1384 (1977) ( the nature and contents of some files may indicate a need for longer retention than is necessary for other files). 4 Because of differences in local laws and in the resources available for storage of client records, this report does not recommend specific time periods for file retention. For example, although a client s juvenile record could potentially be a factor decades later in an adult sentencing hearing, storage capacity (physical space or computer storage) may preclude retaining the juvenile file indefinitely. However, subject to organizational capacity to retain records, the Best Practices Committee recommends that retention periods should be sufficient to preserve records for the time period during which the potential value of the records is reasonably foreseeable.
ACCD Maintaining Electronic Client Records Report 4 contain all the felony cases closed in a certain year, arranged alphabetically by name. For an organization with multiple offices, a further breakdown might be by office location if a central storage facility serves the entire organization (in this situation, it may make sense to have local offices store files for a given period of time, after which they ship the closed files to the central facility). Regardless of the organizational structure, a key component is the ability to locate the file. Thus, the organization needs a database that allows the organization to determine, in response to a request from (or on behalf of) a former client, the type of case, dates of representation, and other information needed to locate the closed file. Electronic Client Records Advances in technology have changed the format in which attorneys generate and receive client-related information. Some courts accept electronic filing of documents, and some defense attorneys receive discovery from prosecutors and law enforcement in electronic formats. Electronic materials range from emails and text messages to video recordings. Indigent-defense organizations differ in their technology resources. Therefore, each organization has different options available regarding the maintenance and retention of client-related materials. For example, an organization with the capability of scanning all written materials may be capable of keeping all such materials in a computerized database, rather than maintaining paper files. The Best Practices Committee s 2011 survey yielded sixteen responses from indigent-defense organizations, and these responses show a wide range of practices. The survey questions and responses are set forth in detail at pp. 7-11 below. The responses show that some organizations have procedures for preservation of electronic documents, such as storage in a DVD library. An electronic storage system may save costs related to storage space and may make it easier to locate records. Recommendations Regarding Electronic Records The Committee realizes that the same specific procedures will necessarily differ according to local requirements. Nonetheless, the following recommendations are appropriate for all indigent-defense providers. Train Staff Regarding Maintenance of Client Records All staff, including attorneys and support staff, should be trained regarding the purposes of file maintenance and the expected contents of files (see File Maintenance, p. 1 above and File Contents, pp. 1-2 above). This general information provides a good foundation for maintaining important clientrelated materials, regardless of their format. Develop Policies Regarding Maintenance and Retention of Electronic Records Organizations should develop and train staff on general policies regarding maintenance of electronic records. The potential importance to the client s case is the starting point in deciding whether to include certain materials in the file. An organization may determine, for example, that all written correspondence regarding a case is sufficiently important that it should be kept as part of the file. In
ACCD Maintaining Electronic Client Records Report 5 applying this general rule to electronic communication, the organization should consider whether specific rules or exceptions are appropriate for email or text messages. 5 Organizations need to consider that the scope of electronic records may include such diverse items as written documents, email messages, photographs, and video recordings. Therefore, policies should provide direction to staff regarding how to combine electronic materials into one identifiable client file or folder. Although printing materials for storage in a paper file is the traditional approach, technological advances and potential cost savings may provide opportunities for some organizations to maintain electronic files as their primary client records. Policies regarding electronic records should address the maintenance of DVDs, CDs, and other items that contain discovery materials. For organizations that maintain paper files, a simple procedure is to store these items as part of the client files. For organizations that have shifted to computerized files, a separate filing system may be necessary for recordings and other physical items that cannot conveniently be stored in the computer system. The considerations for retention of electronic records are similar to those for paper records (see File Retention, pp. 2-3 above). Although the physical space required for electronic storage may be smaller, there may nonetheless be challenges to retaining such records infinitely (examples might include the organization s computer storage capacity and possible changes in computer hardware and software over time). Therefore, organizations may wish to have adopt retention schedules and to notify clients that records may be disposed of after a certain period of time (see Notice to Clients and Length of Time for Retaining Files, p. 3 above) Conclusion As discussed above, the reasons for organizing and retaining electronic records are conceptually similar to the reasons that attorneys keep paper files. However, because of rapid advances in technology and differences in the ways that client-related materials are created and transmitted, defender organizations should review their practices and adopt policies that safeguard appropriate client access to case-related materials. The following summary of 2011 survey results provides an overview of current practices and may suggest some ideas for organizations interested in developing policies regarding electronic client records. 5 In the interest of efficiency, the organization might determine that a complete email chain (i.e., a record of all messages and replies stemming from the same original email) may be preserved instead of each individual message in the chain. Also, the organization might consider whether some emails or texts have more in common with telephone conversations than with written communication, in which case recording a summary of the email or text might be sufficient documentation.
ACCD Maintaining Electronic Client Records Report 6 Summary of Survey Results and Accompanying Comments The Committee received sixteen responses representing public defender offices in fourteen different states (AR, AZ, CA, KY, MA, MN, MS, NE, OH, PA, RI, SD, TN, & WI). A few generalizations can be made as to where offices seem to be in the technology transition. Almost everyone relies heavily on e-mail for communication. About half the offices do discovery be e-mail, to differing degrees, and with differing degrees of success. Jurisdictions that have the technology, at both the court level and public defender level, to facilitate e-filing of documents, are rare but are likely not to remain that way for long. As a result, we need to work together, sharing our ideas and successes, as well as our mistakes, as we forge forward with the transition. The results of the survey, as well as the comments of those who responded, are recorded below, either verbatim or in summarized form. Individual comments are italicized and are separated by doublespacing, following each survey question. Do attorneys in your office (or assigned counsel program) receive discovery electronically; file court documents electronically; communicate with DAs, clients, witnesses, others by email? Yes 15 No 0 How common is the use of electronic media for these tasks? Regularly used by most or all attorneys: discovery 7 filing documents 2 email or text communications 11 Regularly used by some attorneys: discovery 5 filing documents 1 email or text communications 5 Not used regularly by any attorneys: discovery 4 filing documents 14 email or text communications 0 One office was receiving 911 tapes and audio from the prosecutor via e-mail, only to have the same prosecutor s office object to foundation when a recording was offered into evidence, which led to discontinuation of that method of discovery. Comments were also made about the difficulty of accessing e-discovery that comes from different law enforcement agencies in different formats, requiring different software to access. Some states still do not offer e-filing. One allows it only as part of a pilot project. Do attorneys regularly print out all electronic materials? Yes 8 No 5 (It varies 2)
ACCD Maintaining Electronic Client Records Report 7 Do you have written instructions for attorneys to preserve electronic case-related materials? Yes 3 No 11 (If yes, please send a copy of any policy or instruction) Are there guidelines for storing and retaining these materials? Yes 6 No 8 (If yes, please send a copy of any policy or instruction) Most attachments of policies for preservation and storage were generic document-preservation guidelines used by multiple units of state or county government, and did not seem specific to public defender offices. An exception was Arizona, which has Public Defender specific guidelines on preservation of records, which include: 10 years- Felony files, appeal files, and juvenile sex offense files 5 years- Misdemeanor and juvenile files 4 years-extradition and mental health files Arizona also has detailed regulations on how to compute the time frames. Another office has an unwritten policy of preserving for three years any file that ended in a plea and for five years any case in which the client received life (this office never destroys capital files). Is there a system to retrieve all electronic case-related material if the client requests them after the case has been completed? Yes 9 No 5 Has your office transitioned to maintaining client records exclusively or primarily in electronic form? Yes 4 No 9 (Yes-and-No 1) If yes, please answer the following (if no, your survey is complete-thank you): (1) How do you handle paper files that were open at the time of transition? We contracted for digital conversion of all old physical files. The project took roughly 4 months and entailed non-disclosure and confidentiality agreements with the vendor. Newer files are kept onsite for approximately 3 years, after which they are scanned. The basic information about the case and client (contained in our legacy case management system) was electronically transferred to the new system. However, with only a few case type exceptions, we did not scan documents for the open physical files to the new case management system. We identified a date after which the client file would be considered the electronic file.
ACCD Maintaining Electronic Client Records Report 8 Closed files are electronically stored on DVD from the point of transition on. Previously, paper files were maintained until the file is closed. Shred paper files once they have been scanned, thereby saving storage fees. (2) For closed files that need to be preserved, do you warehouse paper files, scan the paper file and preserve as an e-file, or something else (please describe system)? When a file is closed, all physical documents are transitioned to an electronic data-management system (EDMS), a program that stores them in digital format. The case management copies of documents are deleted, thereby making the scanned digital copy the official original. This process entailed a statutory change that we enacted at a State level several years ago. All media files (audio and visual) are maintained in the case management database system. At this point, the file is considered to be archived. When the official-file retention period expires (set in conjunction with the State Library and Archives office), the digital file in the EDMS system is deleted, and all audio and visual files are deleted in the case management system. The case is then considered to be purged. The underlying data (charges, events, disposition, etc.) remain within the case management database indefinitely. We scan all files that need to be preserved. We use a customized document imaging system from Mapsys Inc. called DIF Document Image Foundations. From their desktops, users are able to retrieve documents via our Case Management System as a PDF file. Before the advent of our new case management system, defender Data, on January 1, 2008, our physical files were warehoused according to a retention schedule. Before destruction, some of the files (mainly felony files) were microfilmed for a permanent record. We are slowly transitioning case type by case type to a system that relies less on paper. Until that process is complete, we will continue to warehouse the physical files we continue to create, although the need for the physical file should be much less now that we should have everything in the electronic file. Until we are assured that our system of creating electronic files is complete and accurate, we will continue also to store any physical files we have. Closed files are scanned and then downloaded on DVD. The DVD is then stored. Otherwise, paper files are maintained on open cases. We preserve files in a PDF format on DVD and store the DVDs in a locked cabinet. We maintain a library of the DVDs, and if someone needs the file, they check out the DVD. (3) How did you train lawyers for the transition? Lawyers are trained on identifying in the case management system whether a file is active, archived, or purged. They are trained on how to recover or review an archived file from the electronic data-management system (EDMS) system in the event they need to review something from an archived case. The need for such review most often occurs in relation to alleged probation violations.
ACCD Maintaining Electronic Client Records Report 9 The key was to take it slow with many opportunities for training. During the development of the system, we tried to include all staff in the planning process and determining how the system could make everyone s life easier. This communication helped with some buy in. We periodically have in-house training on various features of the system because some attorneys (especially younger attorneys) learn the ins and outs of the system faster than others do. We continually follow up with checking files to make sure that everything is in the file that should be in the file and talking to individual staff when problems arise. In reality, we are still searching for the best system to make sure the electronic files are accurate and complete. Lawyers were not trained to maintain electronic files, because we do not maintain open electronic files. (4) What have you learned? a. That was a mistake you can save someone from repeating This transition (to electronic files) cannot be easily integrated into an existing system. The required change in thinking requires that file management be taken on as a unique and separate part of the office s operations. Your best approach is to bring someone in who has successfully integrated such a process and to have that person assist you in analyzing how to bring your system into full operation. KEEP IT SIMPLE! Do not throw a lot of bells and whistles at your staff. It will only confuse them. Do not assume that everyone has learned the new system and is using it to full potential just because you have declared it to be policy. Supervision and follow-up are very important. There is definitely a need to store closed files electronically, but paper works well until the file is closed. Also, the client expects a paper file (so he/she can touch it and see it). b. That worked well in your transition. We took this project on initially as a pilot project on a very limited basis to identify the pros and cons. As we learned from experience, we were able to find stronger working procedures and to standardize the process by which the archiving and purging occurs. Keep everything as short and sweet as possible. Keeping the software application as familiar as possible, we based it on the Microsoft Office platform. Identify the enthusiastic supporters of the new system early and use them often in group and individual training.
ACCD Maintaining Electronic Client Records Report 10 Contact Information for Technical Assistance Two public defender offices have been in the forefront of this technological transition to electronic record keeping), have contributed to this Committee s research, and are potential resources to other offices at earlier stages of the transition (or considering the transition to electronic records): The Federal Public Defender s Office in Charlotte opened about six years ago as a paperless office. The head of the office at that time was Claire Rauscher, who is now in private practice in Charlotte. Her present phone number is (704) 331-4961. The head of their IT, Bill Moorman, and the head of the administrative office, Landon Carter, are still with the Charlotte Federal Public Defender s Office. They can be reached at (704)374-0720. The Minnesota State Public Defender, John Stuart, and his technology director, Bob Sykora, have created their own extensive guidelines on retention, storage, and release of electronic materials. They can be reached at (612) 349-2565.