16. Charging for document storage

1. A solicitor must not charge:
   1. for the storage (either physical, electronic or otherwise) of documents, files or other property on behalf of clients or former clients of the solicitor or law practice (or predecessors in practice); or
   2. for retrieval from storage of those documents, files or other property,
      UNLESS the client or former client has consented to such charge being made.

Commentary

In Legal Services Commissioner v Rose (No 2) (Legal Practice) [2007] VCAT 2465, the Commissioner sought an order that the solicitor refrain from charging retrieval fees without the client's written consent. The tribunal found the solicitor guilty of unsatisfactory professional conduct for breaching Rule 37 of the Professional Conduct and Practice Rules 2003 (Vic), which is in similar terms to Rule 16. However, in the circumstances the public interest was served by having the solicitor pay the Commissioner's costs, without any other sanction being imposed.

Where a solicitor makes a copy of a client's documents prior to the client collecting them, such copies must be made at the solicitor's cost as they are being retained for the solicitor's benefit, not the client's. Where the solicitor proposes to charge for imaging documents for electronic archiving, the client should be informed – and specifically acknowledge – that they are entitled to collect the file without charge.