OSB Professional Liability Fund

Retention and Destruction of Electronic Client Files in the Cloud

Picture of computer
April 5, 2019
by Hong Dao

As more lawyers store their electronic files in the cloud through vendors like Dropbox, Google Drive, or Box, or through practice management software like MyCase, RocketMatter, or Clio, they will eventually deal with the issue of what will happen to those files when they close their practice. For many lawyers, this won’t happen for another 10 or 20 years.  But for those contemplating leaving private practice to go in-house, to become a government lawyer, or to change careers altogether, the closure could be in the next year or in a few short years.

What should happen to those files in the cloud when you close your practice? Before I tackle this question, let’s reiterate the PLF’s file retention and destruction guidelines, which are available here. The PLF recommends that lawyers keep a copy of their files for 10 years. This guideline applies to paper files stored in banker boxes or to electronic files stored on your computer or the cloud.
 
The answer to what should happen to those files depends on whether you want to continue paying for cloud storage and where your complete client files are stored. (I am writing from the assumption that lawyers are not using the free version of Dropbox or Google Drive to store their client data, but are paying for the service, which offers more security.)

Files are all in the Cloud

If you’re completely paperless, and your clients’ complete files are kept in the cloud, you may continue paying for cloud storage for the recommended 10 years. You then need to decide what to do with the files after the 10-year mark. Before cancelling the service or letting it lapse, make sure you understand what will happen to the data. Will your data be permanently deleted from the vendor’s server? Or will it be archived somewhere? How soon after cancellation will the data be deleted? Carefully review the vendor’s user agreement or terms of service to understand their policies on how your data is secured, who has access to it, and what happens to your data once your service is cancelled or lapses.
 
If you want to cancel your service earlier, download all your files to your computer or to a separate device like an external hard drive. Keep that device for the duration of the 10 years. After the 10-year period, properly destroy data in your device. More information on how to do this is available in my article called “Unwanted Data: How to Properly Destroy Data in Hardware.”

Files are all over: Cloud, Paper, and Computer 

In reality, most lawyers are somewhat paperless. It’s common for client files to exist in different formats. A part of those files may exist in paper format and another part in electronic format saved on the lawyer’s computer and/or on the cloud. When it comes time to close client files, we recommend that lawyers have a copy of the complete files saved in one location. It is easier to retrieve, manage, and destroy files when they are in one place. Here are some considerations if your preferred location is:
  • Banker boxes – Keeping paper files requires you to print all relevant emails and text messages and other documents that already exist only in electronic format. It also requires you to have ample physical space to store your banker boxes for the next 10 years, then securely destroyed after that. It’s not the most ideal method to store your closed files.
     
  • The computer or external hard drive – This is a preferred location to store your files, but it requires you to scan all paper documents, save emails and text messages, and move already-existing electronic documents from other locations to your preferred location. Destroy the files in the device after 10 years as mentioned above.
     
  • The cloud – This location also requires you to scan paper documents, save emails/texts, and move already-existing electronic documents to the cloud. Don’t forget the considerations mentioned above regarding storing files in the cloud for 10 years or cancelling service. 

One Final Tip

Get the client’s written consent in a fee agreement or engagement letter if you intend to store their files in the cloud, and specify how long you will keep the files, and when they will be destroyed.  

Additional Resources