CONTRATO DE PRESTACIÓN DE SERVICIOS ASOCIADOS A LA MODALIDAD CAPACITACIÓN PARA EL AUTOEMPLEO DEL SUBPROGRAMA BÉCATE DEL

The following guidance notes were produced partly at the request of individual legal institutions and practitioners seeking more detailed advice on recordkeeping than was readily available from their own organisations, the regulators and membership organisations but also to condense the information and records management advice already available for the legal sector and to begin to fill the gaps in available advice.

These guidelines were produced between April and September 2017. They were always viewed as works in progress and were placed on the LRAR website as discussion drafts for review by interested parties and subject matter experts: see http://ials.sas.ac.uk/research/areas-research/legal-records-risk-lrar-project/lrar-information-and-records-management Guidelines 8 and 9 are not reproduced in this appendix because they are included, slightly amended, as appendices to Case study 1: records and recordkeeping in a legal publishing house (see Appendix X).

Contents:

Guideline 1: current advice available to legal institutions on managing records Guideline 2: advice to legal institutions on disposing of records

Guideline 3: advice to legal institutions on identifying records of permanent research value Guideline 4: advice to legal institutions on confidentiality and research access to records

Guideline 5: advice to legal institutions on the business benefits of depositing records in an archives

Guideline 6: advice to legal institutions on the business benefits of an information and records management programme

Guideline 7: advice to legal institutions on digital continuity and managing digital records Guideline 8: advice to legal institutions on managing email

Guideline 9: advice to legal institutions on managing documents in shared network drives

gar agest ock/Sh utt erst ock .c om

Guideline 1: Current advice available to legal institutions on

managing and disposing of records

All organisations, whether public or private, have a duty to their clients and stakeholders to manage the records they hold effectively and in compliance with relevant legislation or regulations. The legal profession is no exception. This guideline seeks to summarise published advice at this time, both generic and targeted to legal practitioners, on best practice in managing information and records in the UK.

It is recommended that institutions specialised to law wishing to improve their information and records management (IRM) familiarise themselves with both the specific guidance provided by the representatives of and regulators for their legal specialism and with generic advice provided by IRM experts such as The National Archives.

Part 1: Guidance from the legal profession to its members

Arbitrators and mediators: the guidance below primarily covers confidentiality emphasising the confidential nature of arbitration and mediation proceedings as follows:

• International Court of Arbitration: Arbitration Rules, Mediation Rules, especially Article 9: Confidentiality https://cdn.iccwbo.org/content/uploads/sites/3/2017/01/ICC-2017-Arbitration- and-2014-Mediation-Rules-english-version.pdf.pdf

• European Commission, European Code of Conduct for Mediators, 2004 http://ec.europa.eu/ civiljustice/adr/adr_ec_code_conduct_en.pdf

• Chartered Institute of Arbitrators: Practice Guideline 1: Confidentiality in mediation, 2007. This guideline also advises (p.1) that records should be destroyed or returned to the parties following a decision: https://www.ciarb.org/media/4171/practice-guideline-1-confidentiality-in- mediation-2007.pdf

• Civil Mediation Council: Guidance note no 1: mediation confidentiality, 8th July 2009: https://www. clerksroom.com/downloads/286-Confidentiality-Guidance-Note.pdf

Barristers: the BSB Handbook v. 3.2, 1st February 2018, recommends (p.268) that a recordkeeping policy be drawn up to identify compliance and records retention requirements. https://www.barstandardsboard.org.uk/regulatory- requirements/bsb-handbook/

Licensed Conveyancers: the Council for Licensed Conveyancers’ Handbook advises on maintenance of proper records, compliance and retention of financial records. https://www.clc-uk.org/handbook/

Notaries: the Faculty Office Code of Practice for Notaries has rules for Recordkeeping and File Storage (Chapter 17), 1 Note: links may have changed or disappeared since the time of writing. All links were rechecked before publication.

Keith B ell/Sh utt erst ock .c om

including advice on records destruction or transfer to an archive approved by the Master of the Faculties. http://www. facultyoffice.org.uk/notary/code-of-practice/ especially http://www.facultyoffice.org.uk/chapter/recordkeeping-and- file-storage/

Patent Attorneys and Trade Mark Attorneys: the Chartered Institutes of Patent Attorneys and Trade Mark Attorneys have produced joint Business practice guidance on ownership, storage and confidentiality of files: https://www.citma.org.uk/ site-search.html?q=confidentiality+of+files

Solicitors: The Law Society provides a great deal of good advice on managing records, including the following Practice Notes https://www.lawsociety.org.uk/support-services/advice/practice-notes/

• Business continuity

• Closing down your practice: regulatory requirements

• Depositing records and documents with public sector archives (note: this practice note has disappeared from TLS’s website but copies are available from the BRA)

• File closure management • File retention: trusts

• File retention: wills and probate • Who owns the file?

The Solicitors Regulation Authority gives advice on good business practice, confidentiality and recordkeeping in the following:

• Code of Conduct, 2011 https://www.sra.org.uk/solicitors/handbook/code/content.page • Handbook, v 19, 1 Oct 2017 https://www.sra.org.uk/solicitors/handbook/welcome.page • The Statement of solicitor competence, 11 Mar 2015, also includes a section (Section D) on the

need to ‘keep, use and maintain accurate, complete and clear records, including:

(a) Making effective use of information management systems (whether electronic or hard copy), including storing and retrieving information

(b) Complying with confidentiality, security, data protection and file retention and destruction requirements’.

http://www.sra.org.uk/solicitors/competence-statement.page

LexisNexis provides guidance on retention and disposal of records here: http://www.lexisnexis.com/applieddiscovery/ lawlibrary/whitePapers/ADI_WP_DocRetentionDestruction.pdf and here: https://www.lexisnexis.com/

applieddiscovery/lawlibrary/whitePapers/ADI_WP_ElementsOfAGoodDocRetentionPolicy.pdf

Lexcel also gives advice on file and case management here: England and Wales Standard v.6 for legal practices (downloadable from The Law Society website: https://www.lawsociety.org.uk/search/?q=Lexcel+standard)

Individual law firms have published excellent guidance for legal practitioners in specific areas of document management e.g.:

• Bristows LLP in conjunction with Iron Mountain, Document Retention Guide, United Kingdom 2013

• Herbert Smith, Document Retention in England and Wales: law, practice and cross-border issues, UK, 2011

• Herbert Smith Freehills, Document Retention: an International Review, Legal Guide, Second Edition, 2013 https://www.herbertsmithfreehills.com/latest-thinking/document-retention-an- international-review

Will writers:

• The Society of Will Writers’ Code of Practice specifies that procedural records and records of transactions must be kept, including a written record of complaints (s.8.7): https://www.

willwriters.com/code-of-practice/. The Society also publishes a Practitioner’s Guide to file retention which contains advice on what information in addition to wills should be included in a client file and when files can be disposed of: https://www.willwriters.com/?s=file+retention.

• The Institute of Professional Willwriters’ Code of Practice gives guidance on the correct storage and protection of client records: https://www.ipw.org.uk/code-of-practice

Part 2: Generic information and records management advice

There is a plethora of both international and UK-specific IRM guidance publicly available to private sector organisations, though care should be taken to distinguish disinterested advice from that which, though often very sound, may be offered as part of an advertising campaign for the sale of bespoke services and storage systems. A small selection of best practice guidance provided by IRM practitioner organisations in the UK is listed below. Excellent advice is also available from international IRM organisations such as AIIM (Association for Information and Imaging Management) and ARMA International and commercial service providers like Iron Mountain.

The National Archives offers detailed and comprehensive guidance here on numerous topics such as managing information risk, managing digital records including emails and disposing of records: http://www.nationalarchives. gov.uk/information-management/.

The Archives and Records Association (ARA) has produced the excellent Don’t Risk It! Know Your Records Campaign including a toolkit aimed specifically at individuals with recordkeeping responsibilities within organisations: https:// www.archives.org.uk/?view=article&id=533:dont-risk-it-know-your-records-campaign&catid=18&ZItemid=406 The Information and Records Management Society (IRMS) has produced a number of guides on topics such as data security, digital records preservation, records retention and disposal, developing IRM programmes and standards and outsourcing IRM: https://irms.org.uk/page/resources

The Information Commissioner’s Office (ICO) offers advice for organisations in both the public and private sectors on data protection and privacy and electronic communications. It also produces a wide range of leaflets, briefing notes, guides and training materials for both individuals and organisations, plus a selection of CDs and DVDs.

In 2014 the ICO gave a specific warning and clear advice to barristers and solicitors on ensuring the security of the information they hold, following a number of data breaches (ICO blog 5 August 2014). The ICO publicly names and shames organisations and individuals which have been found guilty of such breaches.

Guideline 2: Advice to legal institutions on disposing of

records

This guideline has been produced by LRAR2 _{to give advice and assistance to institutions specialised to law seeking} practical help in disposing of their unwanted records. There are two ways to undertake this activity:

1. By destroying/deleting the bulk of records once they are no longer required for business use or to comply with legal retention stipulations; and

2. By preserving a small proportion of records of permanent value in an archives, either in-house or by deposit in an external facility, where they will, once all confidentiality and other requirements have expired, be available for research or reuse.

It should be clearly understood that moving paper records en masse to a warehouse/basement or storing digital records on a lower tier server is not archiving (notwithstanding the hijacking of the term by the IT community and third-party storage providers) but an interim measure to reduce storage costs pending disposal. If records are left indefinitely in storage costs mount, it is harder to find information and compliance risk increases.

The business benefits of destroying redundant information are obvious: they include storage cost savings, reduced duplication and improved accuracy of records, faster information retrieval, less wastage of staff time, reduced compliance risk and reduced information security risk, resulting in a more efficient service to clients and stakeholders. The business benefits to legal bodies of preserving records of permanent value and making them available for research in an archives include:

• Internal: reuse of records for strategic planning, corporate branding, community engagement; compliance with regulatory and legal requirements (especially around the management of client files); removal of ongoing costs where an external archive repository is used and an improved understanding of historical context.

• External: the legal body seen as caring about/part of the community; good PR – the institution gaining a reputation for transparency, honesty, learning from mistakes; rebuttal of damaging myths about the legal profession and legal services; underwriting the institution’s accountability to society and the regulators on which its legitimacy exists and a better understanding on the part of the public of the value of legal services.