Having
organized files is key to running an organized practice. We refer to our client
files every day. Whether they are digital files in a file folder system (with
or without searching software), digital files contained in a document
management system or physical/paper files, it is imperative that any portion of
the file can be easily accessed and is kept confidential (Code of Conduct, Rule
3.3-1). This resource will examine these different options and highlight the important
common aspects.
Regardless of the method you choose, it
is helpful to create a standardized system for file organization and use it
consistently. We suggest that your plan should include separate file folders
(or brads/pegs if using paper files) for correspondence (this includes
all incoming and outgoing correspondence in chronological order), ethical and financial
considerations (such as the conflict check, the client’s intake information, the
retainer letter, your client’s identification and verification documents,
statements of account that have been issued, copies of cheques or digital
withdrawal/transfer form and any receipts of payments on account), draft
documents, pleadings (you may wish to have subfolders for draft, final and
filed), client documents, disclosure, research and miscellaneous to catch
anything else. Often lawyers who have worked with paper files previously, simply
convert their paper file organization into a digital format, such that it looks
much like the above.
It is recommended that you maintain one
true file that you can rely on. This could mean that you save everything
digitally without fail (and scan it to save it when you have to) so that you
always know that every document and piece of information that should be on the
file has been digitally saved. But this does not prevent you from having a
working copy that is paper. What it means is that when the file is closed, you
can readily shred your working copy because you simply printed off these
materials from your digital file, which is the true file. Some lawyers prefer
to have an entirely physical/paper file which contains all documents and
information in a physical form. This lawyer may digitize the file eventually,
but that might not occur until the file is complete and closed. Some may prefer
a hybrid paper file and digital file system. If this is the case, it is
important to determine exactly what is contained on the paper file and what is
contained on the digital file. This is a little more difficult to track, but it
can be done as long as there is unequivocal consistency.
Although the above options sound simple
enough, there are many processes that are relied on to create a standardized
system and there are nuances within each option to consider when deciding which
option to go with.
Is having a paperless practice
realistic? Yes, or at the very least having substantially less paper is
realistic, but it takes some work to research, develop and establish processes
to support it.
Advantages of digital files:
- easier
to find files digitally (searching around for a paper file is time consuming);
- more
people can access a digital file at one time;
- easier
to collaborate;
- saves
money compared to physical storage of closed files;
- greater
mobility;
- organized
office;
- supports
a disaster plan; and
- saves trees.
If you are
going to make a switch to digital files or if you are just creating your
processes and file organization systems for the first time, it is recommended
that you digitize all incoming documents in the same format, a portable
document format (PDF) that is searchable (we will explain this further on). You
may also want to consider whether it is preferable to store email in your
client’s file folder as well, in a searchable PDF format, so that your client’s
file is all located in one place.
Here are four main considerations:
- Hardware
- PDF
Storage & OCR Software
- Electronic
Filing Systems
- Back
Up & Security
Hardware
Switching gears
from a paper practice to a less paper practice requires careful consideration
of the hardware that you will need. Although it is difficult to imagine, you
may no longer require a large copier/scanning machine. Maybe money would be
better spent on individual scanners that can be accessed at each desk or more
frequently throughout the office? And on mobile scanning apps? If you will be drafting,
editing and reviewing documents digitally, you may wish to consider adding a
monitor or two so that you can display what you need to with ease. Would using
a tablet/ultrabook or laptop make saving notes easier? It remains imperative to
document meetings and phone calls with your client and opposing counsel or
others involved on a file. If it is easier to make these notes digitally as you
go, this is an option. Otherwise, you can still write them out on paper, but you
will need to create a process to ensure that they are then scanned and saved on
the digital file every time.
PDF
Storage & OCR Software
Most of the incoming information/documents
will likely be saved in a PDF, and some of your internal documents as well. Having
a PDF that is capable of being searched is more desirable than if it is not
searchable. It is important to understand the difference. A scanned and saved PDF
is an image only PDF and provides a snapshot that is not searchable. An image
and text PDF, such as a PDF that you have authored, creates more layers of text
and is more useful as it is more searchable. It is possible to take an image
only PDF and make it searchable by using optical character recognition (OCR)
software. If you OCR an image only PDF, the software interprets the graphical
image as text characters and makes it searchable.
Some OCR
software options you may wish to consider are Adobe Acrobat Pro (this is not
the free version), Abbyy FineReader, Nuance OmniPage or Nuance PowerPDF
Advanced. You may want to research whether any of these options, or others, are
capable of also saving emails and attachments to PDF.
Electronic Filing Systems
It is possible
to create a plain file folders system (with or without search software) or you
can use a document management system (software) to save documents on your
client’s digital file. Whichever system you choose, it must have the ability to
hold all internally created documents and all documents received externally.
You will need to scan and save external documents that you have received in
paper form. You can also store your meeting and telephone notes and if you
choose to, email correspondence and attachments together in one place.
Folder
System
Your electronic
filing system may mirror the organization you used previously with your paper
file. If you use consistent file naming conventions you can ensure that they
are in chronological order by placing the date first in the title of the
document being saved. You may include folders and sub-folders as follows (with
material being saved in chronological order):
Ethical and Financial
- record
of conflict check
- client
identification and verification documents
- retainer
letter
- statements
of account
Correspondence
- received
from your client
- sent
to your client
- received
from opposing counsel
- sent
to opposing counsel
Court Documents
- draft
documents
- final
documents
- filed
documents (with index)
Search
Software Options
You may wish to
purchase software to assist you in searching for documents. A few Windows
options are Copernic Desktop Search Professional, dtSearch, Windows Vista/7/8/10
Instant Search and Filehand. A couple of Apple options are Spotlight Search
(Mac OSX) and Houdahspot.
Document
Management System
A document management system (DMS)
handles all document types and automatically converts them to image and text PDFs
allowing for full text searching. Document management systems integrate with most
word processors, have email integration and allow for remote access.
The following are a few options to
consider:
- Worldox
Cloud
- NetDocuments
- iManage
Work
- OpenText
Your
accounting/practice management software option may also have a document
management system built in, but it may not offer all of the functionality that
the above options have.
You will recognize that there are common
elements and obligations on files regardless of what format they take. For an
overall review of the common elements that should present on every file (which
often correspond with your Code obligations), please view the Practice Management 101: Life Cycle of a
File
webinar which covers opening a file, working on a file and closing a file.
Backup & Security
It is critical to maintain a reliable
back up system for your folders and documents. An automatic/unattended system
is best, the backup should occur frequently (ask yourself how much work you are
willing to lose) and you should be able to test the back up regularly to ensure
it is doing what it is supposed to be doing.
Lawyers are
required to protect their client’s confidential information (Rule 3.3-1 of the
Code).
3.3-1
A lawyer at all times must hold in
strict confidence all information concerning the business and affairs of a
client acquired in the course of the professional relationship and must not
divulge any such information unless:
a) Expressly or impliedly authorized by the client;
b) Required by law or a court to do so;
c) Required to deliver the information to the Society; or
d) Otherwise permitted by this rule.
Using the cloud
is not prohibited, but disclosure of confidential client information is.
Because client confidentiality cannot always be guaranteed when using
technology, you must inform your clients and obtain their consent for email
communication and for cloud usage outside of Canada: see Personal
Information Protection Act, S.A. 2003, c P-6.5, ss. 6, 13.1. It is recommended that you include this request
for consent in your retainer letter, so it occurs at the beginning of the
relationship.
Due your due diligence when using the cloud and consider encryption, accessibility by administration and also location of storage. Review The Basics of Cloud Computing resource for further information.
Wrap Up Summary:
- Formulate a plan/timeline/budget.
- Manage change and provide training.
- Write it down/create protocol.
- Update Retainer Letters.
- Pick a fixed date for the final transition.
- Always consider the Code of Conduct