When I first came to ALPS I was surprised to learn that we do have firms, who after reporting a claim, are unable to provide a copy of the subject file. Believe it or not, they didn’t keep it. While the reasons vary, generally we find that the attorney or firm simply didn’t think that maintaining a copy was necessary. It is.
One excuse we hear often is “That client was such a pain. I couldn’t get rid of him fast enough.” Here, one of two things may have happened both of which are basically a goodbye, good riddance kind of thing. The attorney was either just fed up and the file was given to the client in order to get him out the door as quickly as possible; or the attorney was trying to avoid the discomfort that comes in confrontational settings. For some, when faced with a highly agitated client in the office who is demanding the immediate delivery of their file, well let’s just say that they quickly and quietly comply. While a copy of the file does need to be made available to the departing client, regardless of who made the decision to terminate the relationship, the ethical rules do not require that this occur immediately upon demand. An attorney is allowed to and should take a reasonable amount of time to review, prepare, and copy the file. Just understand that reasonable is more along the lines of two or three days as opposed to two or three weeks.
Why take the time to do all that? It’s because even if the quality of your work up to the point of termination was outstanding, you potentially create a significant problem if you fail to maintain your own records. Remember, in these situations you’re often dealing with a problem client, someone who has already expressed dissatisfaction. How do you expect to be able to defend yourself if and when this problem client alleges you were responsible for his eventual misstep when the documentation that the client was properly advised is no longer in your possession? Yes, the file may eventually be obtained after much effort, but don’t be surprised to learn that when the file is obtained the key documentation you knew would protect you isn’t there. One can quickly end up in a word against word dispute, and as the attorney responsible for creating the documentation, its absence is going to be a serious problem for you. In short, when you give up control of your records you sometimes have to live with the fallout of doing so.
Similar problems can arise when files, or more often limited notes, are turned over after an attorney has handled a small matter as a favor for someone. The attorney never billed for the work because it was viewed as a favor and thus wasn’t real work for a firm client. No billable time, no client, no need to keep a record of what was done, right? After all, the cost of maintaining client files in long-term storage is already too high. Why needlessly add to that expense. As I see it, there is no such thing as casual legal work or “legal light,” if you will. Legal advice is legal advice, regardless of whether you collect a fee or where or how the advice or service was delivered. To demonstrate the point, attorney-client relationships have been found to have been created by casual conversations in cocktail party settings, conversations on the courthouse steps, and even as a result of speaking at educational events. While you are well advised to always document your advice and the decision-making process regardless of the person or place involved, all of that may be for naught if you fail to keep a copy of that documentation based upon a misguided assumption regarding the nature of the work (it was a favor) or the nature of the relationship (this long-time friend would never sue me). Doing so is for your own protection.
Even more surprising are the times when attorneys complete the work, feel that a very satisfactory outcome was obtained, and instead of keeping a closed file they make the decision to destroy the file after a short period of time. I hear statements like “This is how we keep storage costs down.” or “If there is no file, the client will have a hard time proving any allegation of malpractice.” This belief that what doesn’t exist can’t be used against you is woefully misguided. First, you have no idea what they client has been keeping and again, in word against word dispute, you’re going to be in a very tight spot. In short, if you can’t produce any documentation, it didn’t happen or it wasn’t said. Taking this further, consider how a jury might look at it. Might not the relatively quick destruction of a file suggest that it was destroyed for a reason? Perhaps there was something to hide? In this day and age where digital storage is downright cheap, keep your records for a reasonable period of time, which for many will be in the seven to ten year range.
Regardless of the circumstances surrounding the transition of a current client to a past client, take the necessary time to review, prepare, and copy the file. Turning over a file that is neat and orderly gives a very different message than turning over a completely disheveled file. And of course, you will be preserving your ability to defend yourself should your actions ever be questioned. Given that we continue to see claims where good outcomes are being second guessed after the fact, maintaining a copy of the client file for your records remains as important as ever.
As a Risk Manager for ALPS, Mark Bassingthwaighte. Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog at www.alps411.com. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be contacted at: firstname.lastname@example.org