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72 P E E R T O P E E R : I L T A ' S Q U A R T E R L Y M A G A Z I N E | F A L L 2 0 2 2 In addition, retention periods will also vary between practice groups – because some types of records need to be retained for longer than others. Specifically, wills, property deeds and other documents with a "wet" (i.e. ink) signature need to be kept for much longer – although the supporting documents that contributed to the final will or deed don't usually have to be kept beyond the jurisdictional period. Then there are the exceptions. If the firm has reason to believe that there may be some type of future action or litigation in relation to any given matter, client or activity, then the pertinent information should be retained. Many lawyers like this a lot and may want to use it as a pretext to keep nearly everything. But also bear in mind that in many jurisdictions there's a statute of limitations for legal malpractice (known as the limitation period in the UK). 4 Also, in lieu of statutes of limitation applying, common sense should prevail. Say a matter covers the purchase of a business. Ten years after the transaction has been completed, the likelihood of litigation will be very low, so a 10-year retention schedule should be considered reasonable. Another exception – as alluded to above – is when the OCGs stipulate the retention period. So, firms also need to keep track of any commitments that will override "standard" trigger dates, along with any non-standard data destruction requirements. The challenges of enforcement Once firms know what they have and they know the respective trigger dates, they then need to feed these into a retention, disposition and destruction schedule that is controlled by the firm's retention policy and supported by agreed procedures. Policies and procedures are needed to ensure that the necessary steps for safe retention and disposition are conscientiously followed by everyone. Because another risk is that the firm doesn't enforce its own policy. And when materials slated for destruction get kept, or records that should be kept are destroyed, it can expose the firm to yet more risk, suspicion, investigation, and liability. The policy also has to be legal and reasonable. For instance, a court would likely rule that destroying all complaints about the firm isn't reasonable. Procedures have to be put in place. For instance, a procedure for suspending a destruction schedule should the need arise. It all needs to be signed off by firm management and department heads because it's important they understand and agree to follow the firm's retention schedule. Unfortunately, however, we've heard of instances where the retention schedule takes months if not years to be approved by the necessary individuals. Once there's an approved retention policy and schedule in place, it becomes a matter of following through on what's mandated. This can also be hard. Especially the "Also, in lieu of statutes of limitation applying, common sense should prevail." Q 3 W H I T E P A P E R S

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