File Management and Time Management

• Author: Michelle Roy McSpurren/Rosemary Bocska
• Pages: 219-238

10

File Management and

Time Management

Learning Outcomes

After completing this chapter, you should be able to:

• Appreciate the importance of client confidentiality

and understand how to maintain client

confidentiality by using proper systems for file

management.

• Describe how to effectively and efficiently use

systems and tools, including tickler systems,

checklists, and docketing, to manage files.

• Plan for effective organization of file contents.

• Understand how to manage clients’ property

according to Rule 3.07.

• Understand how to store active client files and

recognize the obligation to provide available sources

of financial disclosure when requested by the Law

Society of Ontario.

• Understand how to close, store, and destroy

inactive client files.

219

Confidentiality ........................ 220

Preserve Privilege If Possible ............ 220

Avoid Inadvertent Disclosure of

ConfidentialInformation ........... 221

Permitted Disclosure of Confidential

Information ...................... 222

Protecting Confidential Information:

OfficeProcedures ................. 222

Systems and Tools for Managing

Client Files ........................ 223

Tickler Systems and Checklists .......... 225

Docketing ........................... 226

Organizing File Contents ............... 228

Preserving Client Property .............. 228

Storing Active Files .................... 229

Physical Storage ...................... 229

Obligations to the Law Society .......... 230

Closing, Storing, and Destroying

InactiveClientFiles ................ 231

Conclusion ............................ 233

Key Terms ............................ 235

Useful URLs ........................... 235

Review Questions ..................... 235

Discussion Questions .................. 235

Scenario-Based Questions .............. 235

Appendix 10.1 File Opening Checklist ... 237

© 2022 Emond Montgomery Publications. All Rights Reserved.

Confidentiality

The Law Society of Ontario’s (LSO) Paralegal Rules of Conduct,1 as well as a long history

of legal tradition, provide that effective legal advice requires full and unreserved com-

munication between the client and counsel. Confidentiality facilitates this communica-

tion. Paralegals must hold all information relayed to them by clients in the course of

their professional relationships in strict confidence. Following the best practices outlined

below will assist you in complying with this requirement.

Preserve Privilege If Possible

Although confidentiality and solicitor – client privil ege are distinc t concepts, there are

important links between them. Client information can cease to be confidential if it is

ordered into court because it is found not to be privileged or if the client clearly waives

privilege over it.

Unlike lawyers, who have “blanket” privilege because of the long-established

concept of solicitor – client privilege, paralegals currently do not enjoy automatic privil-

ege respecting client communications. Rather, privilege can be established on a case-

by-case basis. This was confirmed in Chancey v Dharmadi,2 which also suggested that

in the future, privilege might be extended to licensed paralegals as a class. However,

more than 15 years after this decision, it is still not clear whether a privilege similar to

solicitor – client privilege will automatically be extended to paralegals as a class.

In theory, privilege can extend over a vast array of documentation and communica-

tions between a paralegal and their client. Privilege can also relate to certain confiden-

tial communications that should not be disclosed to opposing parties or to the public.

For example, “settlement privilege” is a subset of privilege and covers the discussions

that the parties may have in trying to settle their dispute. Settlement privilege protects

the negotiating parties from risk or prejudice and promotes settlement. If these parties

were not assured that their settlement negotiations would remain confidential, they

would be reluctant to engage in them.

Paralegals must take care not to divulge privileged information of any type. In Law

Society of Ontario v McEachern,3 a paralegal’s public posts on Facebook referred to

pre-hearing conference matters in his own disciplinary matter before the LSO. They

included the pre-hearing adjudicator’s remarks and suggested that the LSO and its

counsel were unaware of certain allegedly true facts. The Tribunal pointed out that

settlement discussions are privileged. Pre-hearing conferences are convened to facili-

tate the just and expeditious disposition of a proceeding. By posting publicly to Face-

book, the paralegal made the confidential information available to the public in general

and members of the legal community. The Tribunal ordered the paralegal to cease and

desist such public broadcasts and to remove existing posts on privileged topics from

his Face book.

1 Law Society of Ontario, Paral egal Rules of Conduct (1 October 2014; amendment s current to 1 July 2021), online:

<https://lso.ca/about-lso/legislation-rules/paralegal-rules-of-conduct> [the Rules].

2 2007 CanLII 28332, 86 OR (3d) 612 (Sup Ct J).

3 2020 ONLSTH 25 (with related rea sons to 2021 ONLSTH 62).

solicitor – client privilege

privilege extended to

communications between

lawyers and their clien ts,

where legal advice is sought

or provided and when the

parties to the communication

intend that information to

be confidential; the concept

of privilege means that the

lawyer cannot be comp elled

to disclose the information

as evidence; privilege

belongs to the client

220 PRACTICE MANAGEMENT FOR PARALEGALS

© 2022 Emond Montgomery Publications. All Rights Reserved.