Many malpractice claims are filed because of improper file documentation. Too often, when a ruling is unfavorable to a client, they will deny they ever understood the risks of the plan. If a client denies conversations occurred and there is no documentation, the lawyer is faced with a “he said, she said” scenario.
To prevent a claim being filed against you, always document your file regarding key strategic decisions.
Proper file documentation shows you advised your client of potential risks and allowed the client to make an informed decision on how to proceed.
File documentation at the start of a client relationship
Each new client or project, big or small, should start with an engagement letter that is signed by all associated parties. Though each engagement letter will be different, always include these sections:
- A brief overview of the purpose for the letter.
- A clear description of the scope of the representation and legal services the attorney or firm will provide.
- Responsibilities of the client.
- The identity of all parties for whom the attorney agreed to perform legal work.
- Fee and billing arrangements for legal services.
- A description of the lawyer or firm’s file retention and destruction policy.
These letters can be used as binding contracts in the event of fee disputes, collection issues and more. Overall, this documentation delivers peace of mind and security to both parties.
File documentation throughout the client relationship
If your communications with a client are primarily oral, create specific memos to add the file. This can prove your clients were advised of any risks and agreed to the plan. Include these elements in your memos:
- Client/contact name
- Issue or question addressed in the conversation
- Any information provided to you
- Your response and applicable authority
- Issues that require follow-up
After you draft the memo and add it to the file, send it to the client. Also add any email correspondence, filing requirements and due dates in the file.
File documentation at the end of a client relationship
If you choose to withdraw from a case, give the situation careful consideration and attempt to minimize the possible adverse effects. Even when a withdrawal is justifiable, do the following:
- Give due notice of withdrawal
- Suggest employment of other counsel
- Deliver all papers and property to which the client is entitled
- Cooperate with counsel subsequently employed
- Attempt to minimize the possibility of harm to the client
- Refund the client any compensation not earned during the employment
There are many ways beyond proper file documentation to prevent a malpractice claim against your firm. Discover additional risk management tips from Lockton Affinity.