Update, 15 January 2008: Senior Member Howell decided costs and penalty on 17 December 2007: [2007] VCAT 2465. The Commissioner sought an injunction to restrain the solicitor from repeating the conduct. Unnecessary, said Mr Howell, who refused to make any such order. Now that the solicitor has had the law clarified, as he was entitled to do, it is inconceivable that he will fall foul of it again. Similarly, Mr Howell declined to reprimand the solicitor. But he did slot him for costs agreed by the parties at $6,700.
Original post: On 12 October 2007, Senior Member Howell found a solicitor guilty of the lesser disciplinary offence of unsatisfactory professional conduct, in the case of Legal Services Commissioner v JR [2007] VCAT 2180. The solicitor’s practice had charged $55 in response to a request by solicitors for an executor for the deceased’s will which was held by the solicitor. The Legal Services Commissioner prosecuted him for breach of rule 37 of the Victorian Solicitors’ Professional Conduct and Practice Rules 2003, which is reproduced below, and says you can only charge storage or retrieval fees by express agreement with a client. Costs and penalty remain to be determined in another hearing. Mr Howell said:
’12 The policy consideration behind the rule is obvious. Clients are to be informed in advance of a fee that they might incur. Unless a client has agreed in writing to pay a charge, no charge can be made by a legal practitioner for the storage of documents or their retrieval from storage. In other words, [the solicitor] is welcome to charge a fee, but only if he informs his client of the fee, and obtains written consent to payment of the fee.
13 The policy of providing advance information to clients should not be avoided merely by the use of pedantic language. Documents might be “stored”, or “lodged” or “held in safe custody”. There are slightly different connotations, but in relation to documents these terms mean much the same thing, namely that one person holds documents on behalf of another. Similarly, documents might be “retrieved”, or “collected” or “delivered” out of storage, but the end result is that documents held by one person are given to another who is entitled to receive them.
14 In any case, this matter does not need to be determined solely by the policy behind the rule, or the purpose of the rule. [The solicitor] thinks of “retrieval” as retrieval by him, whether it be from archives away from his office or from a cabinet or safe within his office. That is far too narrow a construction of the word. The word “retrieval” in Rule 37 means retrieval by the client of a document held by a legal practitioner in storage, and the Rule obliges the practitioner not to make a charge for the retrieval of the document by the client.’
Rule 37 read, at the relevant time:
‘A practitioner must not make a charge or attempt to do so – (a) for the storage of documents, files or other property on behalf of clients or former clients of the practitioner or its predecessors in practice; or
(b) for retrieval from storage of those documents, files or other property –
unless the client or former client has agreed in writing to such a charge being made.’
Update: charging for retrieval of client files.