The intention was made clear in an Office of the Legal Services Commission (OLSC) 2005-06 annual report, released last week.

“Losing files, or having rodents eat them, swept away in a flood or accidentally shredded) is not all that uncommon,” the OLSC said in its report.

In an interview with Lawyers Weekly, Legal Services Commissioner Steve Mark said this is a real problem for the profession. The OLSC is now trying to ascertain how to deal with lawyers and firms for which this is a common practice.

“Unfortunately, it can happen in any office. For the most part it’s something that can’t be sheeted home to anyone in particular — and very rarely to a lawyer,” he said.

“What can you do as a regulator?” Mark asked, acknowledging he can’t search the office himself.

“If you could prove that a big firm had intended to destroy evidence — which we have not been able to but I can’t talk about that — that is a strike off offence and I would prosecute instantly.

“But it is difficult evidence to get. Someone can say, ‘Oh sorry, I shredded the wrong document’. So it is difficult to be able to establish the requisite standard of proof to discipline. And that is often the case in the ‘I lost the document, I can’t find the file’ defence,” he said.

The OLSC had planned to chase up more lawyers for losing documents in the 2005-06 year. It has pushed for solicitors to make greater efforts to replace files that have been lost. It said that some lawyers had paid for new title deeds, and some had implored other lawyers to provide copies of documents as a result. Some have requested courts provide old record, and others spend hundreds of dollars on copying files, the OLSC report said. “In one case, [we have seen lawyers] translating a letter into Japanese to attempt to recover a lost birth certificate.”

Disciplinary action rarely follows a lost document, Mark said, usually because it is so difficult to prove that a document has been wilfully destroyed or lost. “Under the Legal Profession Act, to deal with something as a disciplinary matter, you have to reach the standards set by the Act and courts for unsatisfactory professional conduct and professional misconduct. Both of these areas require a certain degree of provable wilfulness. To be disciplinary for a conduct breach, you have to prove some wilfulness. You would have to prove that someone wanted to do something and wanted to achieve a negative result. So you would go into the old document retention policies,” he said.

Of the 21,000 lawyers in NSW, 50 of these account for 8 per cent, or 35,000, of all complaints made against practitioners, the OLSC noted in its report. While some of these 50 have been struck off, others have retired and gone overseas, and some are still practising.