14. Client documents

1. A solicitor with designated responsibility for a client’s matter, must ensure that, upon completion or termination of the law practice’s engagement:
   1. the client or former client; or
   2. another person authorised by the client or former client, is given any client documents, (or if they are electronic documents copies of those documents), as soon as reasonably possible when requested to do so by the client, unless there is an effective lien.
2. A solicitor or law practice may destroy client documents after a period of 7 years has elapsed since the completion or termination of the engagement, except where there are client instructions or legal obligations to the contrary.

Commentary

14.1 Introduction

The common law and Rule 14.2 may differ, which means that it may be best not to follow Rule 14.2 without also meeting the standards of the common law (see Rule 2).

Ownership of client documents. The operation of Rule 14 will depend on whether the documents in question are the client's or the solicitor's. The ASCR glossary defines "client documents" to mean "documents to which a client is entitled", examples of which are set out in Appendix C. 

Documents created before the start of the retainer and delivered or sent to a solicitor by the client or third parties during the retainer are held by the solicitor as agent for the client or third party. Documents that are brought into existence during the retainer are well classified by Hope JA in Wentworth v de Montford (1988) 15 NSWLR 348, 355-6. Belonging to the client are documents:

• prepared by the solicitor for the benefit of the client and which may be said to have been paid for by the client; and
• prepared by a third party and sent to the solicitor (other than at the solicitor's expense) with the intention that they belong to the client.

Documents belonging to the solicitor are those:

• prepared by the solicitor for their own benefit or protection, and not regarded as an item chargeable against the client, and
• sent by the client and intended by the client to belong to solicitor.

Handing over client documents on request. Rule 14.1 applies when the client’s matter is completed or the retainer terminated. Unless there is an effective lien (see Rule 15), when a client or former client, or a person authorised by them, requests client documents, then the solicitor with designated responsibility is to deliver any client documents as soon as reasonably possible. 'Reasonable time' is a question of fact that will depend on the circumstances. 

Once the solicitor has delivered the client documents to the client, there is no obligation to hand over further copies. If the client loses them and/or asks for another set, the solicitor is under no duty to provide a further complete set or a copy of selected documents.

Means of delivery. The means by which the solicitor delivers client documents will also depend on the circumstances. Where the solicitor and client have explicitly or implicitly agreed that client documents are to be held in a specific format (for example electronically or in hard copy), then delivery in that format would be appropriate.

For Queensland practitioners, refer to Guidance Statement No. 6 – Form of Delivery for Client Documents.

14.2 Destruction of client documents

Rule 14.2 on its' face allows a solicitor to destroy client documents seven years after the engagement ends, subject to client instructions or legislation. However, client consent is best secured for the destruction, as the rule does not authorise destruction of documents that are the client’s property. It is strongly recommended that solicitors have a file destruction clause in the costs agreement from the outset, and remind the client of this clause at the end of the retainer.⁶¹ 

Documents to be kept for seven years or as legal obligations demand. As claims arising from the retainer can take time to mature, it may be necessary to keep client documents beyond the period suggested in Rule 14.2. Section 60 of the Legal Profession Regulation 2007 (Qld) requires the retention of trust records for a period of seven years, notwithstanding clients' instructions or consent to destroy it earlier. The specific limitation periods of the matter also need to be taken into account before destroying client documents, for relevant times see section 713 A Legal Profession Act 2007, Limitations of Actions Act 1974 (Qld), the Personal Injuries and Proceedings Act 2002 (Qld) or other relevant legislation. In many cases it may be prudent to retain relevant material for up to twenty-five years, or if the file relates to the creation of a document with long term operation, for the entire lifespan of that document plus seven years. For Queensland practitioners, refer to QLS Client Document Retention Guidance.

61 Howard Moses, 'Destroying Client Files? Not without client instructions!' (2008) Proctor 14.