We see problems when lawyers attempt to keep their files in both hard copy and digital form. It can be confusing and can result in the loss of information or records. Our guidance will help you navigate the process for going fully digital.
You can also refer to the LIV’s File ownership, retention and destruction guidelines.
For information about record keeping for trust accounts see here.
You can do it - files and documents can be kept in digital form only
Fully digital files are not only permissible, they have a lot of advantages. You can create a full record that is logically ordered and accessible, where the metadata gives a clear track record of the creation and provenance of documents.
We recommend getting your client’s consent to keep files and client documents in digital form only. You can do this in your costs agreement either from the start or by varying an existing agreement. An example of an appropriate clause to include in this type of agreement is available in the LIV Guidelines.
Changing formats mid-retainer
If you decide to go digital when you’ve been keeping files either in hard copy or mixed format, you will need to draw a line between your processes. For each file, scan in your hard copy documents, making sure the files are logically and chronologically ordered with any existing electronic documents, and that there is a record of the origin of the hard copy document. Make a file note that records how and when you scanned in the documents, and how you assured yourself that you made a complete record.
You will need to tell your client that you are now keeping files digitally and get their written consent before you can destroy those hard documents. Remember that the client owns those documents, even after you’ve made a digital version. If you receive any new, hard copy documents after notifying your client you still need permission to destroy them.
If you don’t have consent, keep the hard copy documents together in a bundle (without needing to maintain a parallel file) or simply keep them in a day box even as you continue to use the digital file as your primary file of record. The choice you make depends on how many hard copy documents you continue to receive and the balance of administrative convenience should the client request the hard copy documents in addition to the digital file at the end of the matter.
If the client does not consent to destruction of their documents, they can call on you to hand them over together with the digital file at the end of the matter or if they change lawyers during the course of it. In these circumstances you do not need to give them a full hard copy of the file. Simply bundle the hard copy documents together and give them to the client, or their new lawyer, with the digital file.
Avoid doubling up
It has been a common practice for some time to email electronic documents to the recipient, and then send the hard copy in the mail. We recommend you don’t do this, the information is preserved by virtue of sending the document by email.
Some original hard copy documents should never be destroyed
Any document of evidentiary value, including original wills, will instructions, sealed court orders, original hard copy agreements or contracts must not be destroyed. In some circumstances, the original versions of critical hand written notes might also need to be kept if you may need to prove when, and by whom, they were created.
It is important that you keep in mind the nature of the file before destroying it. For example, if a will is likely to be challenged by reason of testamentary capacity, you may need to keep any hard copies of notes of the testator’s instructions. For more guidance, see the LIV Guidelines and this article by the Legal Practitioners’ Liability Committee.
Going Digital checklist
- Scan any hard copy documents received into your electronic file as soon as possible and keep the hard copy documents together until it is appropriate to destroy them.
- Scanned copies of documents should not be altered from the original. Take special care to ensure accurate capture of double-sided documents. Use your scanning software to maintain an accurate audit trail for all converted documents, including a record of how the document was created, by whom and when.
- Ensure your digital file is complete, ordered correctly and shows a clear audit trail.
- Keep the hard copy documents together in one place (unless you have the client’s consent to destroy the documents, and it is safe and appropriate to do so).
- Once documents are scanned, place them in a day box, which is a physical box of hard copy documents received in date order. If you need to retrieve a document, you can find it by looking at the date it was received. Alternatively, continue to keep together the hard copy documents by matter number. The Public Records Office of Victoria suggests keeping scanned documents in day boxes for three months before destroying them. However, for simplicity, and if you have a mix of client files where permission has and has not been given, keep them all for seven years before destroying them until all your ‘pre-digital’ matters have washed through. Check beforehand that there are no documents you must retain - under legislation or for any other reason.
- Digital documents should be kept in a secure format until you are permitted to destroy (delete) them in accordance with Rule 14.