Insufficient documentation of work accounts for many of the client relations problems associated with legal malpractice claims. We hear all the excuses when it comes to the reason why a firm’s documentation policies are not as thorough as they perhaps should be. “That step isn’t necessary,” “It takes too much time away from important work,” “There are too many others things we have to do,” and “The client would be offended if we did that” are commonly shared.
Truth be told, the implementation of a few simple office procedures can prevent many of these types of errors from occurring. Here are a few tips that if put into practice can help:
- Maintain a separate file for all documents prepared or received by the lawyer for each client matter and keep those files current. Daily filing procedures help to ensure that information is available when needed as opposed to being misplaced or overlooked.
- Establish a strict policy that provides that no active file can be filed away without a future date in the calendar or tickler system in order to ensure that a matter can never be overlooked or forgotten about. The file review cycle should be at least every 90 days. For litigators this file review frequency should drop to every 30 to 45 days. If no other date is already in the calendar or tickler system within the next 30 to 45 days, place a file review date into the calendar or tickler system for 30 to 45 days out. Many case management software programs have a file review calendaring function built in. Use it!
- Maintain a phone log of incoming and outgoing calls. Substantive conversations should be documented in the file, including important voicemail messages. Send a letter or email to the client confirming your understanding of significant decisions made over the phone or by voicemail.
- Document in writing all co-counsel agreements to include setting forth the responsibilities of each attorney. Consider copying in the client to make certain that the client is aware of each attorney’s role and responsibilities.
- When representing multiple parties, obtain written waivers from all parties documenting that everyone has been informed of the ramifications to them by their agreeing to move forward with the conflict in play and that they have been advised to seek outside counsel as to the advisability of proceeding with the conflict in play.
- Establish a system for checking the accuracy and content of all outgoing documents, such as letters, substantive email, briefs, contracts, motions, and most importantly, opinion letters. The system should include provisions for crosschecking by more than one person.
- Archive all substantive email electronically or in hard copy. It is too easy to alter email and you must be able to provide copies of your version of the exchange should altered email be submitted in support of an allegation of malpractice.
- Document scope of representation in writing on all files. This can be accomplished with a formal engagement letter, a more informal “thanks for stopping by” letter, or in a fee agreement. With limited scope or discrete task work it is particularly important to document what will and what will not be done.
- Once work has been completed on any given file, send a closure letter in order to confirm that representation on that particular matter has ended. Closure letters often take the form of a thank you letter and, as such, can drive additional referral and repeat work.
Don’t get caught in the failure to document trap. Many attorneys thoroughly document the files of “problem clients” yet remain slack in the documentation of files with their longstanding “good clients.” More often than not, this is due to a level of comfort that has developed with longstanding clients. Be careful, this kind of comfort can cloud one’s perception of what needs to be documented and understand that problem clients are not the only clients who sue. Take the time that is necessary to thoroughly document a file throughout the course of representation. The peace of mind that follows is much better than the feeling of regret for not having done so once a claim arises.