P2P

46 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 | W I N T E R 2 0 2 2 It will also sometimes be the case that materials should be copied. This is so that the firm has some evidence with which to contest a future malpractice action, since the incidence of clients suing their own (former) lawyers is another of the things that is increasing. However, the firm should only keep data that it has a legitimate reason to keep. As well as a policy on who should be making these decisions – usually someone at a senior level in the firm such as the general counsel, department heads, and senior partners – it's also important to be clear about who exactly will be tasked with enacting these decisions. This may be split between e.g. the IT department, and Facilities and Records Management teams. It's necessary to have procedures, systems and processes that ensure the firm's policy on matter transfers is upheld, including approvals, chain of custody and security. Next, consideration must be given to how and when materials will be transferred. Electronic material needs to be encrypted and uploaded to a place from which it can be securely downloaded by the onboarding firm. It would be great if the whole exercise could be completed in a few days, but in reality it can take several weeks, if not months, to track down dispersed data, evaluate it, decide on its fate and enact that fate. The probability is that materials will be sent piecemeal: electronic files in days, possibly, but physical files more likely in weeks. Finally, the firm needs to keep a record of the decisions made and the actions taken in respect of all the materials it has assembled. As well, during the transition period, both the departing lawyer and the law firm have a duty to the client to keep them informed as circumstances change. The challenges of onboarding client data The first challenge of matter mobility for onboarding firms is the wait for the client's data to be received and cleared. As noted above, delivery may well be piecemeal, and on an uncertain timeline, since the off boarding firm will likely feel no great urgency to facilitate its successor's/competitor's success. (That said, there's no competitive advantage in the long-term to making life difficult for defecting clients, who may potentially return at some future date.) The second challenge of onboarding is conflict checking. Helpfully this can be dealt with by some specialist conflict of interest systems that will also handle anti-money laundering (AML) checks in the jurisdictions where they're required. What's important is that all the data received is held in an interim space while conflict and other onboarding checks are gone through. This delay has the potential to set up a terrible tension between IT and governance on the one hand and lawyers on the other. Upon transferring to a new firm, lawyers will Q 4 W H I T E P A P E R S "Next, consideration must be given to how and when materials will be transferred."

• Cover