Why You Really Do Need to Create and Keep a Copy of All Your Files
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By Mark Bassingthwaighte
I won ’ t keep you waiting and wondering . In my mind , the reason is self-evident . If you ever find yourself having to deal with a malpractice claim and have minimal or no records to defend yourself with , well , suffice it to say , that ’ s a problem .
How common of a problem is this really ?
I will admit the inability of an insured to provide any file at all or something that even on a good day would have a hard time qualifying as a bare bones file isn ’ t commonplace ; but it does happen . When it does , we ’ re often told something along the lines of , “ I didn ’ t think maintaining a copy of that file particular was necessary .” Of course , now that a claim has arisen , there is a recognition that it obviously was .
One excuse we sometimes hear is : “ That client was such a pain . I couldn ’ t get rid of him fast enough .” Here , one of two things likely happened , both of which are basically the misstep of making the goodbye , good riddance response . The attorney was either completely fed up and the file was given to the client in order to get him out the door as quickly as possible , or the attorney was trying to do everything she could do to avoid the discomfort of a confrontational exchange .
I do understand when faced with a highly agitated client in the office , who is demanding the immediate delivery of his file , it can be tempting to just quickly and quietly comply . That certainly is taking the easy way out , and yes , a copy of the file does need to be made available to the departing client , regardless of who made the decision to terminate the relationship . However , the fact a client is
making such a demand is not an acceptable excuse for turning over everything right then and there .
Note , the rules of professional conduct do not state a file must be immediately turned over upon demand . You are allowed to and should take a reasonable amount of time to review and prepare the file for delivery and make a copy of the file for your records . Just understand the definition of reasonable amount of time is more along the lines of two or three days as opposed to two or three weeks . There should be no game playing here .
Why take the time to do that ?
Because even if the quality of your work up to the point of termination was outstanding , you potentially create a significant problem if you fail to maintain your own records . Remember , in these situations , you ’ re often dealing with a problem client , someone
ALPS Risk Manager Mark Bassingthwaighte , Esq . Since 1998 , he has been a risk manager with ALPS , the nation ’ s largest direct writer of professional liability insurance for lawyers . In his tenure with the company , Mr . Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management , ethics , and technology . Mr . Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association , where he currently sits on the ABA Center for Professional Responsibility ’ s Conference Planning Committee . He received his J . D . from Drake University Law School .
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