Guidance - The consensus on electronic scanning, storage and destruction.

We were recently invited to meet with a large south west based law firm who wanted to explore the options available to them for the secure and legal management of thousands of Wills and EPA's.

They had been advised by one document management company that the best and cheapest option was to scan to disc and destroy the originals. Naturally the senior partner was horrified at this suggestion but it did raise some important questions that are answered here:

IS A SCANNED IMAGE OF A WILL OR EPA LEGALLY ADMISSIBLE?

A scanned image of a Will is a back-up and not a substitute. It can be used where an original has been lost or destroyed i.e. through fire etc. The Law Society requires solicitors to keep original Wills "as if people had reached 100 years old". So many probates now become disputed and this is often because of the provenance of the wills themselves - signatures of the deceased and their witnesses become vital evidence together with any issues of tampering (removing staples, seals, opening sealed envelopes etc)

CAN I COPY A WILL AND THEN DESTROY THE ORIGINAL?

Absolutely not. Keeping originals safe is one of the key code of conduct rules. Knowingly destroying them could result in you being struck off!

WHAT IS THE BEST WAY TO STORE ORIGINALS OF WILL's and EPA's

Storing originals of Wills and EPA's on open shelving or non fire proof safes is certainly not recommended. Imagine losing all of your clients signed and witnessed originals through theft or fire? The consequences really don't bear thinking about. The Law Society of England & Wales, Standard's and Guidance Committee's view is that storing of deeds and other legal documents for clients is a professional service. The loss or destruction of such documents could, therefore, give rise to an investigation by the Office for the Supervision of Solicitors on the basis of inadequate professional services.

Storing Wills off site can also be risky as witnessed by the 2006 warehouse fire of a London based storage company. Hundreds of thousands of legal documents including Wills were destroyed. A fire proof safe is the safest option and ideally not stored high up in your building.

CAN I STORE CERTAIN OTHER LEGAL DOCUMENTS PHOTOGRAPHICALLY OR ELECTRONICALLY AND DESTROY THE ORIGINALS?

Original documents, such as deeds, guarantees or certificates, which are not your own property, should not be destroyed without the express written permission of the owner, Where the work has been completed and the bill paid, other documents, including your file, may be stored for example on a CD rom, computer system or microfilm and then destroyed after a "reasonable" time. In cases of doubt the owner's written permission should always be sought.

WHAT IS THE EVIDENTIAL VALUE OF A PHOTOGRAPHICALLY OR ELECTRONICALLY STORED DOCUMENT WHERE THE ORIGINAL HAS BEEN DESTROYED?

This one is a bit of minefield and there is a dearth of judicial authority on this topic and, until the law and practice on the subject of microfilmed or electronically stored documents are clarified, it is only possible to provide general guidelines. The Law Society advises that:

(a) A microfilm of any document in a solicitor's file will be admissible evidence to the same extent, no more and no less, as the document itself, provided that there is admissible evidence of the destruction of the document and identification of the copy.

(b) Written evidence of the destruction of the original and of identification of the copy will enable the microfilm to be adduced in subsequent civil proceedings (under the Civil Evidence Act 1968) and in criminal proceedings (under the Police and Criminal Evidence Act 1984)

CAN I DESTROY DOCUMENTS ONCE I HAVE HELD THEM FOR THE RELEVANT PERIOD?

Before deciding to destroy a file it is essential to consider who owns which documents (see opening paragraph of this article) No documents should be destroyed without the prior consent of the owner. You may always invite clients to take possession of their own paper, balancing the potential saving of space and expense against a possible loss of goodwill.

Note: This article has been compiled using a combination of Law Society of England & Wales guidelines and the views of a practicing Legal Industry professional. As such Click2Scan accept no responsibility for any actions resulting from advice given here. Independent clarification should always be sought and is advised.