Byte of Prevention Blog

by Jay Reeves |

Proper Documentation Can Prevent Malpractice

Lawyer BlogMany malpractice claims against lawyers can be avoided or quickly resolved through careful documentation.

Lawyers Mutual sees many claims each year where the client and attorney have different recollections about either the scope of the representation or the content of a conversation.  Remember that if an event is not made a part of the written file, an argument can be made later by the client that it never happened.

When the client says the lawyer told him one thing and the lawyer says another, the only available options are to try the case or reach a settlement.  If we try the case, we run the risk that the jury will believe that the attorney is lying to cover up his negligence.  The attorney may be right, but without adequate documentation to support the attorney’s version of events, it is usually less costly to go ahead and settle a claim than to defend the lawyer’s integrity.

Keep copious notes.  Attorneys who extensively document client communications and events related to the matter arm themselves with substantial evidence in defense of their competence. They also inoculate themselves against a legal malpractice claim in the first place. 

A good idea is to use certified mail, faxes, registered mail or overnight delivery services to document important decisions in the case.

1)                Failure to Use Engagement, Disengagement, and Nonengagement Letters

All too often attorneys enter into an agreement to represent a client without documenting in writing the scope of the representation.  In these cases, a misunderstanding may later arise between the client and the attorney as to what matters the attorney agreed to undertake. 

In other cases, the attorney concludes service to the client but fails to send the client a disengagement letter documenting the termination of the attorney-client relationship.  Representation may cease, for example, because the client informs the attorney that he has insufficient resources to continue the matter.  Unfortunately, if the attorney fails to send the client a letter memorializing this understanding, the client may later allege that the attorney failed to follow up on the case before the expiration of the statute of limitation.

The disengagement letter provides powerful evidence of the date the attorney-client relationship terminated.  If a legal malpractice claim is later filed, this evidence is important for purposes of establishing the date the statute of limitation began to run.

Whenever an attorney declines to represent a prospective client or when a prospective client decides he does not want to pursue the matter further, it is important for the attorney to send the client a non-engagement letter documenting the fact that an attorney-client relationship does not exist.  This letter will protect the attorney in the future if the prospective client brings suit alleging that the attorney was supposed to be handling the case and neglected to do so

2)                Failure to Document the Client’s Instructions

Another error attorneys commonly make is failing to document all advice given to the client.

For example, in one malpractice claim a real estate lawyer discovered the day before closing a transaction that an easement ran through the property his client intended to purchase.  The lawyer notified the client of this and warned that the easement owner could build a road through the property.  The client told the lawyer not to worry about it because no path or road existed on the property.  The client wanted to go ahead and make the purchase despite the warning. At the client’s request, the lawyer went ahead and closed the transaction.  Sure enough, the easement owner later decided to build a road running right through the property.  The client pointed a finger at the lawyer, alleging that the lawyer never informed him that an easement existed on the property.  A dated letter sent to the client, with receipt acknowledged, could have avoided the headache and cost of a malpractice claim.

Don’t settle or agree to settle a client’s case without specific authority from the client.  Document the authority to settle.

One of the most common mistakes we see at Lawyers Mutual is lawyers substituting their own judgment for their client’s on decisions that are wholly the clients to make (with the lawyer’s assistance, of course).  In other words, don’t forget whose case it is!  Whether or not to settle, and for how much, is the client’s decision to make.  A lawyer should discuss with his client whether to take a voluntary dismissal and should document that authority.  It is a good idea to have the client sign the voluntary dismissal.

Although the line between tactical decisions for the lawyer and proprietary decisions for the client may be gray, the lawyer should consult the client on all significant matters.  Moreover, important discussions should be memorialized in writing for the client’s understanding and to record the lawyer’s compliance.  Lawyers Mutual receives a number of claims every year from claimants asserting that their lawyer took actions in their case that they, the clients, did not authorize.

The attorney should document all conversations with the client and opposing counsel.  Written documentation is powerful evidence that can be used to defend or resolve allegations of legal malpractice. 

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About the Author

Jay Reeves

jay.reeves@ymail.com | 919-619-2441

Jay Reeves practiced law in North Carolina and South Carolina. Over the course of his 35-year career he was a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms put more mojo in their practice through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations.

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