Ethics

A. The exercise of any lien is expressed to be subject to any order for delivery of the documents made by a Court of competent jurisdiction. (See for example Rule 23.1 Professional Conduct and Practice Rules 2005 (pdf).  

While there is some sympathy for the solicitor seeking to recover costs, the overall administration of justice must take precedence.

Where documents on your file are necessary for the conduct of criminal proceedings, the County Court has been known to order the physical handing over of a file to a new practitioner right there in the courtroom, notwithstanding the first practitioner's legitimate claim to a lien.

The Court has relied upon:

• Paragraph 2.9 of PNCR 1 of 2001
• Paragraph 13 of PNCR 1 of 1999

to emphasise practitioners’ obligations not only to the letter of the law but the spirit of the law and the effective administration of justice. (This information is available from the County Court.)

The same principle is also reflected in theProfessional Conduct and Practice Rules 2005 (pdf). Where the practitioner has ended the retainer, Rule 23.4 means the practitioner must:

• Give the documents to the client in exchange for "satisfactory security" for the unpaid costs; or
• Give the documents to the client's new solicitor, provided:
  • they are held subject to the lien (if practicable) and in exchange for "reasonable security" or
  • the new solicitor enters into an agreement to "procure payment" of the first practitioner's costs upon completion of the relevant proceedings.

A. There is a common misconception that files may be destroyed after seven years. Client files are trust property, held on behalf of the client.

• As a general rule, you should not destroy or dispose of files without the client's specific instructions.
• After seven years, if you want to dispose of files, you must first make reasonable efforts to contact the client for instructions.
• Only then, if you are unable to obtain instructions, you may think about destroying files without instructions. See section 7.2.16 of the Legal Profession Act 2004 (pdf).

Further reading:

• What amounts to "reasonable efforts" for the purposes of section 7.2.16?
• Can I store files electronically and destroy the hard copy?
• Can I get client's instructions at the start of the matter to destroy files after seven years?
• Guidelines for closing, storage and destruction of files (pdf) - WA Law Society

A. There is no judicial authority on this question. The Ethics Committee has considered it several times and provided non-binding rulings.

• In September 2000 the Committee felt a letter to the client's last known address, allowing a reasonable time for reply, would be enough. The Committee also noted while there is no specific statutory requirement to maintain a deed register, a practitioner's professional obligations of competence and diligence would require a proper system for custody and retrieval of documents.
• To read the full text of this ruling, go to Ethics Committee ruling R3757.
• In September 2002, the Committee was asked to give further guidance, considering that files may be very old and written communication to the last known address was unlikely to achieve anything. The Committee confirmed that it cannot give legal advice, but suggested:
  • Write to each client at the client's last known address advising them of the intention to destroy files in the absence of contrary instructions within 60 days;
  • Where this is not practicable, advertisements could be placed in local and statewide newspapers, requesting clients to provide instructions on destruction or retrieval of files.

To read the full text of this ruling, go to Ethics Committee ruling R3893.

The Law Institute of Victoria's Records Management Department also suggests:

• Post large notices in the reception area of the firm, stating that files more than seven years old will be destroyed in the absence of contrary instructions.
• It is generally unwise to destroy deeds, even seven years on from the end of the matter and despite reasonable efforts to contact the client for instructions.

Contact:

External Intervention Department
Jennifer Stebbing
Ph: (03) 9607 9512
Fax: (03) 9602 5270
Email: jstebbing@liv.asn.au

A. There is no general prohibition against microfiching or otherwise electronically storing client files. However this does not absolve you of your responsibilities under section 7.2.16.

The following information is taken from "File Storage and Destruction", available from the Records Management department of the LIV

• It appears a client file can, in the normal cause of a firm's practice, be microfilmed or scanned without advice to that effect to the client.
• However, the client file cannot be destroyed unless the conditions of section 7.2.16 are met.
• Provisions of the Evidence Act 1958 allow for the reproduction of documents from the microfilming process to be used as evidence in certain circumstances,
• Those provisions do not allow for the destruction of the client file once the file has been microfilmed.

The LIV is not aware of any provision of the Evidence Act which extends the same evidentiary provisions to documents reproduced from a "scanning" process rather than from a microfilming process.

Contact:

External Intervention Department
Jennifer Stebbing
Ph: (03) 9607 9512
Fax: (03) 9602 5270
Email: jstebbing@liv.asn.au

A. Yes, the Records Management Department of the Law Institute of Victoria encourages practitioners to obtain written instructions from the client at the outset for this purpose:

• Authorising the file to be destroyed after seven years from completion of the file; or
• Authorising the file to be destroyed at the completion of the matter on the provision the file is microfilmed before destruction.

Despite any such authority to destroy files, particular care should be given to Wills and Deeds.

Contact:

External Intervention Department
Jennifer Stebbing
Ph: (03) 9607 9512
Fax: (03) 9602 5270
Email: jstebbing@liv.asn.au