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					                                     CLOSED CLIENT FILES

Lawyers leaving or closing a practice are often unsure of what to do with closed client files.
Determining what to do with closed files will depend on who owns the file or, more accurately,
who owns the documents stored in the closed file.

Ideally, lawyers should have a file closing procedure in place such that all client documents are
returned to the client before or when the file is closed. If this procedure is followed for every file,
the only documents remaining in closed files at the time of a practice closure or transfer will be
documents that belong to the lawyer. These may include copies of original client documents,
copies of draft and final agreements, the lawyer’s personal notes, copies of correspondence
(including e-mails, memos or notes relating to client communications), all of which are kept for
the lawyer’s benefit and at the lawyer’s expense.

Where closed files have already been purged of all documents or property belonging to the
client, you may wish to preserve the file for a period after your practice has been closed or
transferred to defend against any future claims or complaints against you. The retention period
for closed files is at the lawyer’s discretion and depends on a number of factors, such as the
limitation period for actions against lawyers, the nature of the original matter, and the outcome.
For issues to consider see File Retention, via the online Resource Centre (http://rc.lsuc.on.ca).

If you not have followed the recommended procedure and a closed file contains documents that
belong to or are the property of a client or former client, you have an obligation to preserve
these in accordance with By-law 9 and Rule 2.07 of the Rules of Professional Conduct. You
must deliver the documents to the client (or to his or her direction), continue to preserve the
documents (either personally or by transferring to another lawyer) and, in some cases, you may
decide to return the entire closed file to your client. Prior to transferring a closed file to another
lawyer or delivering it to a client, you should consider the potential consequences of doing so.

A review of your closed file list will assist you to determine which files contain client documents,
which files may be destroyed in a manner that maintains client confidentiality and which files
should continue to be preserved, and for how long.


Checklist


CLOSED FILES CONTAINING CLIENTS’ DOCUMENTS OR PROPERTY
       Review closed files list to determine which files may still contain documents or property
        that belong to the client.

       Deliver documents or property from the file to the client by registered mail or have the
        client retrieve them from the office, signing an acknowledgment of receipt.

       If the client cannot be located for the return of documents you must
        o   continue to preserve and maintain the client’s documents indefinitely or until the
            client provides you with instructions, or
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       o   transfer the file to another lawyer for continued preservation and safekeeping

      If there is any dispute as to who is entitled to client documents or property or you are
       unsure as to the proper person to receive them, you must make application to a tribunal
       of competent jurisdiction for direction as required by Rule 2.07(6).

CLOSED FILES CONTAINING ONLY LAWYER’S COPIES OF DOCUMENTS
      Once closed files have been purged of client documents or property and they contain
       only documents that belong to you, review your files to determine whether you will
       o   destroy the closed file, in a manner that preserves client confidentiality
       o   retain all or part of the closed file, for how long and in what medium
       o   transfer the closed file to another lawyer
       o   deliver the closed file to the client

      Note that your obligations to maintain certain records, financial and otherwise, will
       continue after you close or transfer your practice. See the Client Funds, Accounting,
       Books and Records section of this Guide.

DESTRUCTION OF CLOSED FILES
      Review your closed file list to determine which files may be destroyed upon the closure
       or transfer of your practice and which should continue to be retained for a period before
       destruction. See Closed File Tracking Chart.

      Even where you decide to continue retaining closed files, you may first reduce the bulk
       or size of them by destroying certain contents, such as multiple or excess copies of
       individual documents or copies of documents that came from an outside source and can
       easily be re-procured.
      If you choose to destroy closed client files or certain file contents you must do so in a
       manner that preserves client confidentiality in accordance with Rule 2.03 of the Rules of
       Professional Conduct, such as shredding or incineration. Where closed files or file
       contents are in non-paper or electronic format, special steps may need to be taken to
       ensure proper deletion and physical destruction.

      If you choose to outsource the destruction of closed client files, regardless of the
       medium, ensure that the third party provider is reputable and will ensure that they remain
       secure until they are destroyed.

RETENTION OF CLOSED FILES
      Review your closed file list to determine which files should continue to be retained and
       for how long. See Closed File Tracking Chart.

      Determine what file contents you wish to retain, considering
       o   potential complaints against you or claims for errors or omissions

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       o   the length of the limitation period for actions against lawyers
       o   the nature of legal work performed (e.g. real estate files should be kept longer than
           criminal files involving expired appeal periods)
       o   the period during which the legal documents created for the client may impact the
           client’s interests
       o   whether the client was under a disability or was a minor at the time legal services
           were performed
       o   the results you obtained for the client in the matter
       o   the client’s attitude or character towards you and the outcome of the matter

      Determine if any contents of the closed paper file may be converted to electronic or
       other non-paper form, considering legal and regulatory requirements as well as the
       trustworthiness, readability and accessibility of the converted form.

      Create a retention schedule outlining how long files will be retained, at what interval(s)
       they will be reviewed, and when eventual destruction may occur.

      Where closed file information is in electronic format and that information is to be
       preserved, determine where and how the data and its back-up media will be stored,
       archived and retrieved after the practice closure or transfer.

      Determine where to physically store your closed files, paper or electronic, to maintain
       confidentiality in accordance with Rule 2.03 of the Rules of Professional Conduct and to
       protect file contents from damage or destruction.

      If you choose to store closed client files with a third party provider, whether they are in
       paper or electronic form, ensure that the third party provider is reputable and will ensure
       that your files remain secure and confidential.

TRANSFER OF CLOSED FILES TO ANOTHER LAWYER
      Consider the potential consequences prior to transferring closed files to another lawyer.
       Closed files should only be transferred to another after you have determined
       o   the receiving lawyer has agreed to retain the files for a certain period and to allow
           you access to those files for the duration of that period, or
       o   you no longer require access to the documents contained in the closed file

      For your records, maintain a list of the closed files that were transferred, to whom and
       when, with a summary of the file contents.

DELIVERY OF CLOSED FILES TO CLIENT
      Consider the potential consequences prior to delivering a closed file to the client. A
       closed file should only be delivered to the client where you have determined you no
       longer require access to the documents contained in the closed file.

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      Remove all your personal notes made to, or stored in, the file.

      Obtain the client’s written acknowledgement indicating receipt of the only remaining copy
       of the client’s documents in the closed client file. Retain this for your records.

NOTICE TO LAW SOCIETY OF UPPER CANADA
      Notify the Law Society’s Administrative Compliance department to advise what lawyer
       will be taking over active or open files and closed files, if applicable. See Letter to Law
       Society of Upper Canada.




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