Documentation is not just a good idea – it might prevent a complaint to the State Bar or a lawsuit for malpractice.
This starts with the first contact with a prospect, perhaps before you’ve even accepted the case or opened a file. Document the nature of the problem, what was discussed, and what if anything you’ve agreed to do. Include dates, times and locations.
“While it may not be practical to document everything in every case, you should document as much as possible,” writes Camille Stell, President of Lawyers Mutual Consulting and Services. “Certainly those big decisions that have a great impact on your case.”
Documentation is not just for CYA. It saves time, reduces disagreements, and eliminates having to do the same thing more than once.
Documentation also doesn’t always mean paper. In fact, with online communication and cloud storage, it’s easier and cheaper to store things digitally. Just make sure you follow the ethics rules and keep the data safe and confidential.
10 Pointers from the Pros
The why of documentation is easily grasped. More elusive is the what. Here are 10 tips:
- Document your engagement. The retainer letter should define your terms of engagement and clearly identify who the client is. It should also confirm who you don’t represent and – in some instances – what you don’t agree to do. Are you performing a full or limited title search? Handling both the property damage and the personal injury claims?
- Document your client’s expectations: Put in writing what your client wants you to do and what they think the end result will be. Confirm available courses of action, possible outcomes, the implications of key decisions, and how long the case should take. Provide checklists and points of contact.
- Document communications. Set out your firm’s communication policy – who returns phone calls, how often your client should expect to hear from you, and what the client’s role is in the process. “Good communication is the best way to avoid a malpractice claim,” writes Dan Pinnington, vice president of claims prevention at practicePRO. “Having some documentation of those communications is one of the best ways to defend a claim.”
- Document your fees. Prepare a fee agreement or letter and have the client sign it. This will come in handy if you have to take collection action, or if you need to withdraw from the case because you’re not getting paid. List your hourly rates. Include all personnel who will assisting on the case. Provide an estimate of anticipated costs. Clients hate being blind-sided by unexpected bills.
- Document your billing process. Explain the frequency, detail and format of your bills. Clients like regular, monthly bills, says this Lawyers Mutual practice guide. Identify any other people or services (expert witnesses, consultants) for which the client will be charged. Keep detailed time records.
- Document even more diligently in certain cases. Such as when you’re working with difficult or emotional clients. “Communications in writing help confirm what was said or done for the client in the event you ever need to explain why or what work was done, to clarify a discrepancy between you and your client, or to defend yourself in a malpractice claim,” says Stell.
- Document correspondence. Keep copies of letters, e-mails, legal memoranda, and conference or telephone notes. Sometimes, you will want to have your client sign a receipt for a key document.
- Document client trust account activity. This is required by Rule 1.15 of the NC Rules of Professional Conduct.
- Document milestones. Send interim status letters. Let the client know where things stand and what will happen next.
- Document your disengagement. Make it clear when the case is closed and your obligations have ended.
What other things do you routinely document in your cases?