Chances are, you are all too aware that record-keeping is a tedious but necessary evil in the legal profession. There’s also a good chance that you have a website. According to the 2014 ABA Technology Survey Report, 84% of law firms do.
Record-keeping requirements include more than just client files and financial transactions. Many state rules also apply to other electronic communications — including websites.
It is not true that something released to the internet is “out there” forever — especially when it comes to those attempting to comply with record-keeping requirements.
Better Safe Than Sorry
Discretion is key when deciding what information you send out electronically as well as what information you take down or remove. Between ethical rules governing what you should not post and what you should not delete, it may seem like you can’t win with the Internet. Electronic communications nevertheless remain an invaluable means by which you can communicate with your clients.
ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 10-457 expressly states that any website with background information about a law firm or lawyers constitutes a “communication about the lawyer or the lawyer’s services,” subject to the requirements of Model Rule 7.1. Model Rules 7.1, 7.2, and 7.3 provide further guidance on communications and advertising, but do not explicitly impose record-keeping requirements on either. The Model Rules serve as outer limits of regulations and restrictions on attorney advertising but leave specific restrictions to the regulation of state bar associations, whose opinions on the matter vastly differ.
In addition to mirroring the language of the Model Rules, some states impose a record-keeping requirement for attorney communications. This often includes retaining copies of law firm websites. Although the bar associations may recognize the ephemeral nature of website content means that it is always changing, most states impose record-keeping requirements compelling that a copy of ads — including web pages — is maintained for a minimum of anywhere from two to seven years. These record-keeping requirements also vary considerably as to what materials and information need to be retained and in what form.
Although most states agree that attorney websites constitute advertising or communication, what rules actually govern these websites remain a hotly contested issue across the country. Among the states that have reached a consensus, only a handful have yet to issue express explicit guidance on record-keeping implications. However, many other state bar associations and ethics committees recommend that more conservative attorneys should follow the record-keeping requirements applicable to other forms of advertisement to ensure compliance.
What Do the States Say?
Vermont‘s ethics committee holds websites to record-keeping standards, requiring you to keep a copy for two years with a record of when and where it was used. Utah similarly imposes a two-year record-keeping requirement, which extends to copies of each page on the website as opposed to merely the “home page.” Recognizing that “effective websites are updated and changed regularly, perhaps even daily,” the Utah Bar considers electronic copies of each web page to satisfy the two-year record-keeping requirement, as retaining a hard copy of each update may not be efficient or practical.
North Carolina also imposes advertising and record-keeping rules on attorney websites. Despite recognizing that “websites are updated frequently,” compliance with North Carolina’s record-keeping rules require that you retain a hard copy of the website and a record of when and where it was used for two years. Less stringently, the State Bar of Arizona simply requires that you retain a copy of their website in some “retrievable format” along with a record of the location and time that the website was “live.”
The California State Bar’s Standing Committee on Professional Responsibility and Conduct recommends that the easiest way to ensure that your website is in compliance with California’s record-keeping requirement of two years is to simply print a copy of each page that is revised added to the website then retain printouts in a chronological file. The Committee also allows you to store records as HTML files. California even gives you an “ace in the hole” by providing the chance to rectify any failure to retain copies of an earlier version of your website by printing an archived copy with the Internet Wayback Machine.
The chart below details the states that expressly require or recommend you to keep a copy of your website. Look up your state bar rules for further information on how to store copies of your website.
|State||Should You Keep a Record?||Duration|
|District of Columbia||Recommended||2 years|
|New Hampshire||Recommended||6 years|
|New Jersey||Required||7 years|
|New Mexico||Recommended||2 years|
|New York||Required||7 years|
|North Carolina||Required||2 years|
|North Dakota||Recommended||6 years|
|Rhode Island||Required||2 years|
|South Carolina||Required||6 years|
|South Dakota||Recommended||2 years|
|West Virginia||Recommended||2 years|
Why You Need a Formal Policy
State laws and ethics rules governing record-keeping may vary significantly, but the potentially devastating consequences of noncompliance are universal. A fundamental part of remaining knowledgeable of risks associated with new technology is knowing how to combat them. This makes an effective record management policy essential to shield you from potential ethical pitfalls.
There is no fix-all for records management. The complexities of ethics rules and other legal requirements necessitate that policies are carefully crafted to reflect the most up-to-date and accurate information. While developing a records-retention policy seems like a daunting task, a formalized process or policy will ensure adherence to record-keeping principals that is flexible enough to protect client interests, accommodate your business needs, and avert potential ethical snares stemming from something as innocent as a mouse click.
Featured image: “ Social network user login, website mock up on computer screen, tablet and smartphone ” from Shutterstock.