Paperless concerns ...
by Dave Bilinsky, Practice Management Advisor
We’re just leaving from this old world
We’re leaving from a land of Fear
Admire this new dawn
We’re heading for a new horizon…
Lyrics: Magnani. Recorded by VisionDevine
I have spoken to a number of lawyers lately who have called about taking a law firm paperless. Certainly there is much anxiety exhibited on giving up on paper and practising in a paper-less world (there will probably never be a situation where we fully abandon paper). Yet lawyers (and staff) express many misapprehensions in going paperless, part of which is rooted in a concern that somewhere the Law Society requires firms to keep paper files. There is, of course, no such requirement in the Legal Profession Act, Law Society Rules or the Professional Conduct Handbook. Indeed, there is a specific provision in the Rules that all accounting records can be kept in electronic form, so long as a paper copy can be produced on demand. The typical concerns that we hear can be summed up as follows:
- There is no paper trail.
- Computers can go down.
- No backup exists.
- You can be hacked.
- Data obsolescence is a factor.
- Media degradation is a factor.
- You can lose an e-document.
- There is no structure to the documents on the system.
- Documents can be sent outside the office easily.
- Changes are required to policies, procedures and work routines.
- There will be increased time costs, including costs of running dual systems.
- There is the possibility of job elimination or reassignment.
- A lack of training could lead to a loss of face in not knowing how to work the new system.
- The firm would face increased costs of transferring a file.
- What about all the transition issues?
- How do we go from here to there?
- What about increased hardware and software costs?
- What do we do with the original documents?
The requirement in any paperless office would be that the office could produce a full and complete record of the client’s file (and render this to paper, CD-ROM, DVD or flash drive, if required). So long as you have a complete record of the file (which is organized in a manner that the whole file could be reviewed and produced if necessary), which would necessarily include documenting all transactions and the client instructions in relation thereto, it should not matter on what type of media that file is stored. The important consideration is that the file is well-organized, it is in a common format that the Law Society could review and reflects the level of documentation expected in a well-run law office, it should not matter on what media — paper or electronic — the file is stored.
Of course, there are also many benefits of going paperless:
- You can search the entire network — and file — easily and fast, particularly compared to paper files.
- You can reuse documents easily – and thereby craft a precedent library.
- Document management software imposes greater organization than in a paper-based office where documents can be left in piles on desks, cabinets and floors.
- The cost of electronic storage is much less as compared to paper.
- Paperless offices enable remote access/telecommuting for full and part-time lawyers and staff.
- Paperless offices are greener.
- Paperless systems can integrate and share data — thereby saving time and money.
- The cost of handling files can be faster, cheaper and easier.
- Offices are neater.
- There is an increased ability to meet new client needs (Sharepoint extranet portals for example). Indeed at a recent Corporate Counsel meeting, counsel stated that they preferred electronic war and closing rooms than to emailing documents around. You can control access and distribution.
- There is usually a decrease in photocopy/printing costs.
- Courts, land title offices and other organizations are increasingly accepting paperless filings.
- It is harder to forge or alter a properly secured electronic document. Moreover, metadata associated with an e-document records a great deal of information about who created it, when it was modified and by whom, etc., that is not typically accessible in a paper file.
- Your clients’ systems are electronic and they expect us to be able to accept e-discovery electronically.
- Having a paperless office requires the firm to at least consider a file retention and destruction policy that is consistently applied in accordance with The Sedona (Canada) Principles to avoid any suggestion that files were destroyed in order to destroy evidence.
- The Courts are calling on lawyers to be paperless in court (see Justices Turnball’s and Granger’s posts to this effect at www.slaw.ca).
Of course there are many other reasons to go paperless (as well as arguments against it). However, there is no denying that the world is moving in a paperless direction: Barker, Cobb and Karcher in a 2008 publication entitled “The legal implications of electronic document retention: Changing the rules” stated that 99 per cent of business documents are currently being produced electronically. It is pointless going against the tide; lawyers need to adjust to the new reality and embrace the possibilities, examine the risks and benefits in moving to a paperless world. We are headed for a new horizon.