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Managing safe custody documents (such as original Wills, Deeds, Powers of Attorney, and Certificates of Title) places a strict legal obligation on solicitors. Unlike standard client files, safe custody documents cannot be destroyed after seven years. They require perpetual, secure management unless specific actions are taken.

The management of these documents is primarily governed by the Legal Profession Uniform Law (NSW), the Australian Solicitors’ Conduct Rules 2015 (ASCR), and specific regulatory guidelines from the Law Society of NSW.

Storage and Security Requirements

  • Separation from client files: Safe custody documents must be stored securely and entirely separate from active or archived client matter files to prevent accidental destruction or loss.
  • Physical protection: They should ideally be kept in a fire-proof and water-resistant safe or a secure, climate-controlled commercial repository.
  • Centralised register: Under Rule 94 of the Legal Profession Uniform General Rules 2015, a law practice must maintain a register of safe custody documents. This register must be kept in a secure place, completely separate from the safe custody documents themselves.

Retention vs. Destruction

  • Indefinite retention: While Rule 14.2 of the ASCR allows solicitors to destroy standard client documents seven years after a matter concludes, this rule does not apply to safe custody documents.
  • A query that often arises is what if the documents held become irrelevant? Such as the case with Certificates of Title.  Unfortunately, the retention rules apply to all documents held in safe custody, remembering that the documents are the property of the client and as such are held as trust documents attracting the same rules.
  • No unilateral destruction: You cannot destroy safe custody documents unless you have express, written instructions from the client. Without authority to destroy these documents, they must be held indefinitely.

Strict Rules on Digitisation

  • According to the Law Society’s Guidelines for Management and Storage of Digital Documents, safe custody documents are the exception and should not be destroyed, even if they have been digitised.
  • Safe custody documents must be retained in their original physical form. While scanning a backup copy to your document management system is excellent practice, the digital scan cannot legally replace the original physical document.

Release and Verification Protocols

Releasing safe custody documents carries significant liability. A law practice must implement strict verification procedures:

  • Identity verification: Require formal, certified primary photo identification (e.g. passport or Driver Licence) before releasing any documents.
  • Joint ownership: If a document (such as a deed or title) is jointly owned, you must obtain written consent and identification from all parties before the original can be released.
  • Third-Party/Authority requests: If an executor, attorney under a Power of Attorney, or another law firm requests the documents, you must verify the underlying legal instrument conferring that authority (e.g. a certified copy of the Grant of Probate or the Power of Attorney document).
  • Liens: A solicitor’s lien for unpaid legal fees cannot be exercised over a Will or a Certificate of Title.1

Fees for Storage and Retrieval

  • Prohibition on unauthorised fees: Under Rule 16 of the ASCR, you cannot charge a client for storing or retrieving safe custody documents unless the client has consented to such charge being made (e.g. in the initial Costs Agreement).
  • No profit margin: If charges are agreed upon, they must be reasonable, reflect actual costs, and cannot contain a profit element.

What happens if a practice closes or merges?

If a law practice ceases to exist, the former principal(s) remain personally responsible for the trust property. Safe custody documents must take one of three paths:

  1. Be safely returned to the client.
  2. Be transferred to another law practice strictly in accordance with Rule 6 of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015, which requires giving clients at least 14 days’ written notice so they can object or direct otherwise.
  3. Continue to be safely held by the former principals or their legal representatives.

Best Practice Tip

Review your firm’s Costs Agreement/Retainer templates. Ensure they explicitly outline whether you offer safe custody, any associated costs, and define the clear boundaries of retention to manage long-term liability. Additionally, the Law Society’s Compliance Review toolkit suggests having a policy to conduct an annual safe custody audit to cross-reference your physical documents against your centralised registry.

Consideration should also be given to adopting the practice of returning safe custody documents to the client and keeping a scanned copy in the file relevant to the matter.  Thereafter, when files are digitised and destroyed, the obligation of indefinite storage is alleviated.

For further information, you can contact the Legal Information Service team of the Professional Support Unit (PSU) at the Law Society of NSW at liservice@lawsociety.com.au or on (02) 7251 0191. PSU provides free and confidential guidance to solicitors in NSW who require assistance understanding their regulatory, ethical and professional obligations in legal practice.

1 Balch v Symes Turn & R. 87, which was cited by Hawkin v Clayton and others (1988) 78 ALR 69.

Brian Barlow is a solicitor in the Professional Support Unit (PSU) of the Law Society of NSW.

David Viney is an External Intervention Solicitor with the Law Society of NSW.