I suspect it would come as no surprise to learn that many of the files that come our way after a malpractice claim has been reported come up short in terms of thorough documentation. If we had found in those files what should have been there, a number of claims would have been resolved far more favorably than they otherwise were. This is one reason why risk managers focus so much of their educational efforts on underscoring the need to thoroughly document client files.
In my consulting over the years with thousands of attorneys who practice in firms all over the country, I have been pleased to discover that the overwhelming majority of attorneys in practice are competent, well intentioned professionals. To speak in the vernacular, our insureds are good folk; yet some of these attorneys have been through a claim or two at some point in their professional lives while others, even a number who were nearing retirement, have never been sued. An interesting question is why. There are the obvious answers to include the occasional misstep like missing a deadline, dabbling in an unfamiliar practice area, an impairment was in play, or poor client selection; but these examples don’t cover it all.
There is another explanation behind certain claims that is not discussed often enough and in my opinion is not fully appreciated for the risk it truly is. And unfortunately the longer an attorney is in practice, the greater the risk is of this type of error arising. The misstep is in simply getting too comfortable. The reasons behind what I call the "comfort trap" vary. For some attorneys the routines of the practice become all too familiar and attention to detail starts to wane. With others, the realities of working with certain clients or the same competent staff for many years leads to the creation of professional and even personal friendships which brings with it a higher degree of trust. Here too, we find that attention to detail sometimes similarly declines. This is the downside that comes with comfort in our routines or with certain clients and staff because all too easily casualness and informality follows.
Inattention to detail can and has led to legal missteps which eventually resulted in significant claim losses. It’s failing to document scope of representation with repeat clients because, due to comfort with the relationship, the attorney assumed that the need for this type of documentation was no longer necessary. It’s an attorney not wanting to risk offending long-term clients so engagement letters and closure letters drop off the radar. It’s failing to continue to use checklists because the attorney has gone through the same series of steps so many times that this step has become a bother. It’s trusting the relationship with the client so much that capturing and preserving the email exchange is viewed as a waste of time. It’s taking shortcuts like not reviewing letters or documents before they’re sent out, failing to confirm that someone’s decision as to when a statute of limitations will run is accurate because the staff really does know what they’re doing, or skipping the formal conflicts check because relying on everyone’s memory is equally effective. It can even be an attorney not wanting to document a file with anything at all because she is “simply doing a favor” for a long term client, a family friend, or a staff member and the work is not viewed as true legal work.
Feeling confident in your practice and comfortable with your clients and staff is a good thing as long as the level of comfort doesn’t result in a related casualness with file documentation and/or the procedures that get you there. When you begin to rationalize away the need to thoroughly document any given file you’re setting a trap that truly can bite you at some point further down the road. If you ever find yourself moving in this direction, stop a moment and think about what’s going on and try to address the situation. For example, I can accept that the use of a formal contract each time a long-term client brings a new matter to the firm may be viewed as offensive. However the answer is not to simply take away that critical piece of documentation. Try to find an acceptable alternative. The use of a confirming email or informal letter of clarification can be quite effective at accomplishing the same goal. The bottom-line is that these “failure to document” missteps often come to light in one of those “word against word” disputes in a claim or disciplinary matter and we all know that attorneys don’t fare well when that happens. Yes, thoroughly documenting every client file may take a little extra time; but should you ever find yourself facing a malpractice claim on any one of your files, trust me, you’ll be glad you did.
Mark Bassingthwaighte, Esq., is a Risk Manager for ALPS Property & Casualty Insurance Company and 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. 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.