Practice Management

I have received several emails of late, and one in particular and on point, concerning what I might describe as the fear of disposing of paper. Fear might be an over-exaggeration, but many of you know what I mean.  You are scanning documents, saving files online or on DVDs, cutting down on paper, but feel apprehensive about disposing of originally signed documents, such as retainer agreements and settlement documents.  There is just that lingering doubt that you should not either destroy the original document or return it to your client.

So fear fits.  You want to scan and destroy the document, but you cannot because of lingering doubts that something bad is going to happen because of it.  But, we have to remember that FEAR is just an acrostic which means False Impressions Appearing Real.

Despite knowing this, I understand this fear.  I have experienced it myself. 

I am just an old country lawyer of sorts.  As such, I have struggled with this issue, not only now but over the last 15 years before computers and scanning was what it is now. When I closed down or got out of consumer bankruptcy law in 1998 and 1999 I had a little over 4,000 closed files. I was afraid to get rid of them because the bankruptcy courts at that time was not imaging documents or maintaining the documents online. I contacted the bar and asked how we might purge these, and they had no real good solutions. I ended up renting two huge storage facilities and maintaining them at the cost of thousands of dollars until 2005. It was past all statutes of limitations as well as we could tell, so I paid a good deal of money to have a company come, take the files and incinerate them. Although I have not received any nasty or angry responses, I am still getting requests for paperwork from client or inquiries that they might have given me original documents that they cannot now find.   I do remind them we had a policy of giving all original documents back to them, and then apologize that the files were destroyed. I do not know why I still sweat bullets over this, but I do.

So, I understand the worry, but I also understand the problem with maintaining paper, especially working from home. First, is the issue of storage of documents for years. I do not have the room at home and I do not want to rent the space to store paper. Second, is portability. The benefit of an Internet or computer-based practice is that you can be mobile. If you want to go to the coast for a week and still run your office you can. Paper forces you to centralize and prevents flexibility.

I have just decided to live with the guilt and any small risk that might exist and to destroy the paper. I scan it and maintain it on my computer, on a DVD and/or on Basecamp after the file is closed. I still make sure I do not take or give original documents back that the client provides to me, with the exception of those, like fee agreements, which I draft and the signatures on which I maintain.  Of these I  scan and then destroy the originals of these documents.  To do otherwise, would be to seriously defeat the purpose of that I am trying to achieve.

As to the legality of this, I will point out two things. First, more large creditors are doing this now. With the possible exception of Deeds of Trust or original car titles where the law requires an original, they are scanning and destroying paper. We are doing no worse.

Second, when you think of the document in the context of a litigation or a dispute (God forbid) there are two rules I think that apply. The first is the best evidence rule which only says the original is preferred unless the original does not exist. Well, it does not exist because I destroyed it, but I did it in the pursuit of proper business practices. Although not in this context, I have never had trouble getting a copy of a document into evidence or before the trier of fact for consideration when I do not have the original as long as I have a verifiable copy. The second is the optional completeness rule. This might occur when your client has the original and you have a copy that does not match up. If the original goes into evidence, you have the right to put in the copy or visa versa into evidence with it. When would this come up? I am not sure, but it seems to me to complete the thought process.

Ultimately, I do not think the problem much exists. It is not like you are destroying paper without maintaining an accurate copy with all signatures, etc. So, my advice is not to worry about it.