Take it from someone who handles legal malpractice claims on a daily basis: Clear documentation of communications and events related to the representation of a client – from the moment the representation begins through its termination – can go a long way towards showing that you did what you were supposed to do for the client and may even insulate you from a lengthy legal malpractice battle or ethics complaint.
On the flip side, the failure to effectively document conversations with clients, including advice you provide, decisions the client makes and discussions surrounding the scope of the representation, can be a real problem when you are facing a malpractice or ethics claim.
Lawyers never know what actions may give rise to a claim, so it’s important to document the file with everything that is of any significance to the case. If the client dictates specific instructions or limitations or controls on the work to be performed, that should be clearly stated in the file. In many malpractice claims, the lawyer did, in fact, give the client the right advice, but was unable to prove it because it’s not documented. This can include advice on whether to accept a settlement offer or not, whether to sue specific defendants, whether and when to appeal; the list is endless. Being able to pull out a note to the file or, better yet, a letter to the client outlining the relevant conversation, is invaluable in defending a malpractice claim. If a discussion over some aspect of the representation is not made a part of the written file, an argument can later be made by the client that it never happened.
Confirm Key Decisions by the Client
It's especially critical to confirm key client decisions in writing, particularly in cases where a client refuses to do what the lawyer recommends. Document the advice and the client’s response. It’s not uncommon for clients to later blame their lawyer for not stopping them from making a bad decision or not helping them understand how important an issue was to their case. Some clients simply refuse to take responsibility for their own choices, so having a written record of the matter is imperative.
Document Your Retention Agreement
In addition to documenting client conversations, it’s important to document your retention. As a lawyer, you would never advise a client to enter into a business relationship without a well-defined understanding of the arrangement, preferably in writing. Similarly, you should, in a written agreement, explicitly lay out the scope of the representation, fees to be charged, and if there is a time limitation on the services to be provided, identify that as well. While Rule 1.5 of the Minnesota Rules of Professional Conduct stops short of requiring a written fee arrangement for every matter, it is nonetheless preferable in all cases. (Notably, the rule does require a writing for contingency matters and fee division arrangements, as well as for availability fee and some flat fee agreements. The rule has some very specific requirements, especially for flat fee arrangements, so read it carefully.) Such an engagement letter will go a long way toward reducing the risk of a malpractice claim in the event that the relationship goes sour, particularly over something like the extent of the services the client expected for her money.
Wind up the Relationship in Writing
Similarly, once the representation is completed, it is a good idea to document that in a letter to the client. Thank the client, confirm that all original documents and other tangible items have been returned, and let the client know the representation has concluded so the file is being closed. The letter ensures that the client understands there is not an ongoing attorney-client relationship, and is strong evidence of the date the attorney-client relationship terminated. If a legal malpractice claim is later filed, this letter can serve to establish the date the statute of limitations began to run. In some states the lack of an appropriate termination letter can expose the lawyer to continuing malpractice liability.
You are busy, your time is valuable and it’s easy to convince yourself that it’s not necessary to make a note to a file or do a confirming letter to a client following a key decision. After all, you get along great with your clients and creating that documentation takes time. But taking the time to properly document the file now may mean avoiding a much more time-consuming and stressful malpractice lawsuit some time down the road. In that case, you will be glad you spent the time – and so will your malpractice carrier!