1. Introduction
1.1. Who should read this Guidance Statement?
This Guidance Statement is for solicitors and law practices.
1.2. What is the issue?
Solicitors are reminded that file notes are a fundamental part of ethical and competent legal practice. File notes assist solicitors in discharging their duties to act in the best interests of clients, provide clear and timely advice, follow lawful instructions and may protect the practitioner should allegations later be raised as to the instructions received and/or the appropriateness of the solicitor’s conduct.1
1.3. Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement, it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Advisory Committee.
2. Ethical principles
Rules 4, 7, 8 14 and 19 of the Australian Solicitors’ Conduct Rules 2023 (ASCR) apply to this Guidance Statement.
The Rules impose a professional obligation on all solicitors in Queensland.
3. Scope
This Guidance Statement is concerned with the ethical considerations and repercussions in failing to take, keep and record detailed, accurate and contemporaneous files notes by a practitioner. Courts and Tribunals consistently observe that contemporaneous file notes are an essential part of acting with diligence and competence, particularly where instructions, advice, capacity, or authorisation may later be disputed. Indeed, a failure to do so may constitute unsatisfactory professional conduct or if there is fraudulent behaviour, professional misconduct.2
4. Issues
4.1. Ethical
In addition to the administrative and risk management reasons, there are several ethical considerations for taking and keeping file notes:
- File notes assist solicitors in acting competently, diligently, promptly and in accordance with client instructions.
- Files provide a written record of instructions received, advice given, and actions taken that can be referred to later, reducing the risk of solicitors misremembering or overlooking matters.
- File notes assist with continuity, especially where a file is transferred.
- File notes can evidence that the client’s interests were considered throughout the matter and that actions were taken in accordance with the client’s instructions.
As noted by Barlow QC DCJ in Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295:
[I]t is generally expected that a competent and diligent solicitor will, in the course his or her usual practice, keep a written record of instructions and other relevant matters relayed to the solicitor by the client. This is not only good practice to protect the client’s interests, but it also protects the solicitor’s interests in case of future litigation (such as this) as, without such a record, the solicitor’s evidence may well be disbelieved.3
4.2. Risk management
Professional indemnity insurers will often rely on contemporaneous file notes when assessing claims made against a solicitor.4
The courts have reiterated on many occasions the importance and reliance on file notes in determining whether the evidence of the solicitor should be relied upon in a range of disputes including costs,5 legal advice,6 or duty of care.7
5. What is a file note?
5.1. Format and contents
A file note is a record of a conversation, meeting or other attendance. The conversation, meeting or attendance may be with a client, third parties engaged on a matter (including experts and counsel), or an opposing party or their solicitors. It may also record internal planning and decisions.
Each solicitor will have their own approach, but a good file note will generally include:
- the time and date of the conversation, meeting or other attendance (“when”);
- the names of the persons present (“who”);
- the type of attendance, including telephone call, meeting, court attendance, settlement discussion or mediation, and whether the attendance was in-person or virtual (“where”);
- accurate details of the key matters discussed and, where the conversation or meeting is with a client, the instructions given by the client, the substance of advice given to the client, the client’s response to the advice including any further instructions (“what”).
A file note can be handwritten, typed or even recorded. If handwritten, it should be legible, and in all cases, it should be written in plain and professional language. Handwritten notes produced on a device or scanned are usually acceptable.
For brief notes taken (or typed) by hand during a conversation or meeting, it may be necessary to prepare a more detailed note after the call or meeting. In that case, the initial notes taken at the time might be attached, and it should be noted, if not otherwise obvious, that the detailed note was prepared after the fact (see 5.2 Contemporaneous, below).
In some cases, it may be prudent for a file note to record the practitioner’s impressions of their client or another person in attendance. This includes situations where the practitioner is witnessing a document being signed by a person or where the capacity of the person has the potential to be called into question in the future. However, in other instances, it is not necessary or desirable for a file note to record such impressions, and practitioners should keep in mind the possibility of the file note being read by their client, regulator or the court at some point in the future.
It is also important from an evidentiary perspective for the practice adopted for the making of file notes to be as consistent as possible. For example, if a solicitor typically made handwritten notes only, but for one significant meeting produced a detailed typed copy, this may lead to questions about why that was done in that one instance.
5.2. Contemporaneous
File notes of conversations or meetings, as opposed to the solicitor’s own notes about the next steps, have the greatest evidentiary value when made contemporaneously (or as close to the subject event as possible). If a file note does not exist, it should not be created at a later date to be held out as a contemporaneous record. Conduct of that nature is dishonest and will likely constitute professional misconduct.8
If a file note is not truly contemporaneous (because it has been recopied, edited, or otherwise altered), that fact must be disclosed when the note is produced as evidence. That is the case for even modest amendments (e.g., formatting, neatness, grammar, removing letterhead).
In Council of the Law Society of New South Wales v Soszyn [2019] NSWCATOD 73, the respondent was found guilty of unsatisfactory professional conduct in circumstances where she had produced documents to the court in response to a subpoena that purported to be, but were not, documents that the subpoena required her to produce. The respondent rewrote her file notes so that a law firm header was removed from the stationery, the handwriting was neater, and a few grammatical corrections were made. It was not disputed that the notes were otherwise true and accurate copies of the original file notes, but they were not the original documents sought by the court.
5.3. In-house and government lawyers
In-house and government lawyers will also produce file notes in their work, although the method and frequency may vary as they are embedded in their organisations with an often-continuous daily interaction with internal ‘clients’, making the recording of all such interactions problematic.
Nonetheless, there is both a professional and evidentiary value in keeping a record of key internal and external meetings and of other key events and decisions. The method used may also vary, depending on the systems available. For example, the keeping of a bound diary may be sufficient for solicitors in some organisations, while others may use electronic systems.
Where systems are shared with other parts of the organisation, care needs to be taken to limit access to protect privilege in the file notes created.
5.4. Transcript of a meeting or other electronic recordings
Solicitors are increasingly using artificial intelligence technology to transcribe or summarise meetings. Whether the record is generated by AI or transcribed in some other way, the primary considerations are that the transcript / recording must be accurate, confidential and that consent is obtained where appropriate.
Accuracy
If a file note is generated using artificial intelligence (AI) technology, the content should be checked and verified by the practitioner who attended the meeting. An example might be a file note summarising the next steps that need to be taken on a matter which is generated by AI at the request of the solicitor.
Confidentiality
AI tools vary in having appropriate data handling and security protocols. For guidance, see Joint Statement: AI selection and use checklist.
AI features can be ‘integrated’ into practice systems but still process data in a supplier’s or third party’s cloud. Ensure your selection process identifies and checks data handling and that any third-party access to the client’s confidential information is managed appropriately.
Disclosure and consent
Some courts also require documents prepared with the use of AI to be to be marked as such if used in proceedings.9 This may include file notes. In some circumstances recording conversations10 is unlawful either entirely or without disclosure and/or consent.11 Solicitors should be familiar with the applicable rules and practice directions12 in the courts in which they practise.
A file note prepared using voice to text dictation technology by a solicitor (i.e., not a transcript of a meeting) should also be checked but raises issues similar to the common former practice of dictation to administrative or word processing staff. In either case the responsibility to confirm accuracy is with the solicitor.
It is ordinarily good practice for practitioners using voice to text technology or artificial intelligence technology to transcribe a conversation or meeting to secure prior consent from other participants to the conversation or meeting. Solicitors should also be aware that different laws apply in other jurisdictions in relation to the need to obtain this consent and in some jurisdictions such notice or consent may be mandatory.
It is generally regarded as professionally discourteous to record a conversation with another legal practitioner without the prior consent of the other person taking part in the conversation, notwithstanding any relevant laws that may apply.
Suggested endorsement
Consideration might be given to including a suitable note to AI transcribed meetings or AI-generated file notes, such as:
“This record was generated automatically by <<system name>> on <<date>>. Content checked and verified as accurate by <<insert name>>, on <<date>> who has personal knowledge of the matters dealt with as they were a party to the discussion. Ther parties to the discussion <<were made aware of / gave consent to>> recording and transcription. <<Initials>>”.
In relation to AI, please also refer to Guidance Statement No. 37 – Artificial Intelligence in Legal Practice.
5.5. Privilege and confidentiality
The position in Queensland as to whether the legal professional privilege in a solicitor’s file note of a conference with an expert which records the expert’s opinion is abrogated by r 212(2) of the Uniform Civil Procedure Rules 1999 has been the subject of some debate.
This issue was most recently considered in Enkelmann & Ors v Stewart & Anor [2023] QCA 155, where the Court of Appeal held that privilege still applies to file notes of conferences with experts that record expert opinions, and that a solicitor’s file note of a conference with an expert, noting or reporting an opinion expressed by the expert at the conference, is not a document consisting of a statement or report of an expert, within the meaning of r 212(2).13
Any system – AI enabled or not – that does not adequately protect the confidentiality which underlies privilege may introduce risk.
6. Ownership of a file note
6.1. Who owns a file note?
A file note made by a solicitor is ordinarily the solicitor’s property because it is created for the solicitor’s own benefit and record-keeping. However, the privilege in its contents belongs to the client, and the note remains subject to the solicitor’s duties of confidentiality.
However, where a client has been charged for the preparation of the file note or charged for the attendance of multiple solicitors at the same meeting (where it can be assumed, absent evidence to the contrary, that one solicitor was in attendance for the purpose of note-taking), the file note will be the client’s property.14
Where a law firm is an ‘organisation’ under the Privacy Act 1988 (Cth), file notes containing a client’s personal information15 may be subject to an application for inspection or correction by the client.16 Even if the file note is owned by the firm the client could require access unless one of the APP 12.3 exceptions applies. Third parties about whom the firm holds personal information may also have these rights under APP 12 & 13, but it is likely that an exception would apply in most situations.
6.2. Delivery of client documents and transfer of file
The ownership of file notes is relevant to the obligation to return ‘client documents’ at the completion or termination of the law practice’s engagement and the transfer of files.
Please see:
- Guidance Statement 6 – Form of Delivery for Client Documents
- Guidance Statement 30 – Transfer of files.
7. Example on the importance of file notes: wills and powers of attorney
A will may be challenged on the basis that the testator lacked testamentary capacity or was subject to undue influence. File notes documenting the solicitor’s observations, questions asked, and answers given can often provide assistance to the court in considering whether the will-maker did have capacity and gave instructions freely.
Similarly, file notes can assist the court in finding that a client understood the meaning and effect of making a power of attorney.
In Legal Services Commissioner v Penny [2015] QCAT 108, the Tribunal considered the practitioner’s failure to make an appropriate record of the steps taken in assessing her client’s capacity to execute a will. The Tribunal noted the importance of documenting client instructions in a file note, and the reliance that can be placed upon those notes to give effect to a client’s testamentary wishes:
A client is entitled to expect of a legal practitioner that, where the practitioner’s notes or documents may be important in the context of the services provided by the legal practitioner, a file will be created where these notes and documents are maintained.
The failure to maintain a file and with it, the relevant notes, falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.17
In Legal Services Commissioner v Given [2015] QCAT 225, the respondent legal practitioner was found to have engaged in unsatisfactory professional conduct in failing to maintain reasonable standards of competence and diligence in the preparation and execution of a will and enduring power of attorney for a client.
The Tribunal found that the need to take detailed file notes will be particularly important where the practitioner is aware of issues which give rise to a concern regarding the client’s capacity [emphasis added]:
The importance of detailed notes will vary depending on the circumstances. The importance increases if any indicia are present which should alert the practitioner to be vigilant.
In this case Mr Given says he was sufficiently aware of the issues surrounding his client’s condition that he aimed to act with greater than normal care. In those circumstances, a practitioner, acting with the required standard of competence and diligence should make and retain adequate notes as to the attendances on his client. The notes should have included detail of the questions. This is an important aspect of the solicitor’s duty in the circumstances.
In the cases of De Brenni, Comino and Ford one aspect of the conduct of the practitioners was that adequate notes were not taken, and in each decision, this was found to be conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner.18
Disciplinary proceedings in Victorian Legal Services Commissioner v Waduge [2023] VCAT 906 related to, amongst other matters, the respondent’s failure to record file notes of oral instructions in relation to a power of attorney.
The Tribunal acknowledged that the respondent’s failure to record critical notes in relation to the preparation and execution of the power of attorney was conduct which fell well below the requisite standard expected of a legal practitioner.
Please see:
- Guidance Statement 5 – Witnessing Enduring Powers of Attorney
- For those who are Lexon insured, the Wills and EPOA Risk Procedure Pack.
8. More information
Solicitors are also referred to the Australian Solicitors’ Conduct Rules Commentary, Queensland Law Society.
For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.19
1 Mark Steele KC and Kristy Gothard, ‘Care should be taken with file notes’, Proctor (online, 5 October 2023) <https://www.qlsproctor.com.au/2023/10/care-should-be-taken-with-file-notes/>.
2 Legal Services Commissioner v Han [2023] QCAT 310.
3 Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295, [71] (emphasis added).
4 Fox v Percy (2003) 214 CLR 118, 44-45.
5 Ashney v Pippa Colman & Associates Law Practice Pty Ltd [2022] QCAT 281; Legal Services Commission v Hallam [2024] QCAT 386.
6 Sewell v Zelden [2010] NSWSC 1180.
7 Secured Lending 1 Pty Ltd v Mahmassani [2021] NSWSC 811.
8 Legal Services Commissioner v Han [2023] QCAT 310.
9 For example, Supreme Court of NSW, Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI), 28 January 2025.
10 While not every transcription system necessarily creates a “recording” as opposed to a “record” many will do so, even if this recording is ephemeral.
11 Invasion of Privacy Act 1971 (Qld); Surveillance Devices Act 2007 (NSW), Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA), Surveillance Devices Act 2007 (NT); Listening Devices Act 1992 (ACT); Listening Devices Act 1991 (Tas); Telecommunications (Interception and Access) Act 1979 (Cth) s.7.
12 Supreme Court of Queensland, Practice Direction Number 5 of 2025: Accuracy of References in Submissions, 24 September 2025.
13 Enkelmann & Ors v Stewart & Anor [2023] QCA 155, [21]–[22].
14 Alexiou v Alexandra White and ors t/as HWL Ebsworth Lawyers [2021] NSWSC 485.
15 Privacy Act 1988 (Cth), s.6(1); Office of the Australian Information Commissioner, ‘What is personal information’, Privacy guidance for organisations and government agencies (Web Page, 5 May 2017, Accessed 20 April 2026) <https://www.oaic.gov.au/privacy/privacy-guidance-for-organisations-and-government-agencies/handling-personal-information/what-is-personal-information>.
16 Australian Privacy Principles (APP) 12 & 13.
17 Legal Services Commissioner v Penny [2015] QCAT 108, [50]–[51].
18 Legal Services Commissioner v Given [2015] QCAT 225, [99]–[101] (emphasis added).
19 Queensland Law Society, ‘QLS Senior Counsellors’, Queensland Law Society (Web Page) <https://www.qls.com.au/qls-membership/services-and-benefits/professional-services/qls-senior-counsellors>.