Property entrusted to a solicitor for safekeeping is held by the solicitor as a bailee,1 and the solicitor cannot part with those items without the client’s consent (NB: this also means that client documents cannot be destroyed without client consent, even after the expiration of the seven year period mandated in Rule 14 of the Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’). Failure to return such property can play a part in disciplinary proceedings.2
While no direct assistance as to what measures need to be taken in relation to keeping items in safe custody can be found in the ASCR or Legal Profession Act 2007 (Qld), it is clear that protection against reasonably foreseeable threats is a must. Such threats would include theft (by public or staff), fire and flood. Practitioners should also check with insurers as to minimum requirements in insurance policies.
The average house fire lasts between 30 and 45 minutes depending on construction materials,3 suggesting that best practice would involve a safe which had a fire rating of at least an hour. Such safes should also be waterproof to ensure that the contents are not damaged by firefighting efforts.
The location of the safe should also be the subject of some thought - it should not be visible from the exterior of the building or any public area within the office, and the number of staff who have access to it should be limited. It is important to note that storing documents off-site does not abrogate the liability of a practitioner in this regard, and that conducting an inspection of off-site storage may be warranted in some circumstances, such as following a flood or when notified of a break-in at the storage facility.
Property given to solicitors for safekeeping should be thoroughly tracked by an appropriate system. This should involve uniquely identifying the property, noting the date it was received and the date it was returned to the client; best practice is that the return of the property is attested by two signatories.
1 See The Public Trustee of Queensland as a Corporation Sole [2012] QSC 178.
2 In Re Grzybek 567 N.W.2d 259 (Minn. 1997), although note that other factors were also in play in that matter.
3 D Gross, ‘Measurements of Fire Loads and Calculations of Fire Severity’ Wood and Fiber (1977) 9(1) 73-85.