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 are somewhat lacking when it comes to thorough documentation. If we had found in the file what should have been there, a number of claims might have been resolved far more favorably than they otherwise were. This is why risk managers focus so much of their efforts on educating insureds about the need to thoroughly document client files. In this post, I wish to address one of the reasons why I believe attorney files are missing certain types of documentation shared with the desire to help you avoid ever having to face a similar situation.
In my consulting over the years with thousands of attorneys who practice in firms located in Alaska to the Virgin Islands, I have been pleased to discover that the overwhelming number of attorneys in practice are competent, well-intentioned professionals. To speak in the vernacular, our insureds are “good folk.” That said, some of these attorneys have been through a claim at some point in their professional lives while others, even a number who are nearing retirement, have never been sued. I’ve always been curious as to the reasons why some attorneys get sued and others do not. Certainly dabbling in unfamiliar practice areas, attorney impairment, burnout, poor client selection, and even poor client communications explain some of the claims but not all.
There is another explanation behind some claims that is not discussed often enough and thus not fully appreciated for the risk that it truly is. And, unfortunately, the longer an attorney is in practice the more likely this error might arise. In short, the misstep is one of excess comfort. The reasons behind 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 for many years leads to the creation of professional and even personal friendships which brings with it a higher degree of trust. This comfort with long-term clients is another reason why attention to detail sometimes similarly declines. The downside with comfort in our routines or with certain clients is that all too easily casualness follows and that’s the problem.
Inattention to detail can and has led to legal missteps which eventually resulted in significant claim losses. It is 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 or 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 record is viewed as a waste of time. 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. Watch out for that one!
Feeling confident in your practice and comfortable with your clients is a good thing as long as this level of comfort doesn’t result in a related casualness with file documentation. 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 along. If you ever find yourself moving in this direction, just stop a moment and think about what’s going on. I can accept that the use of a formal contract each time a long-term client brings a new matter in may be viewed as offensive. The answer however, is not to simply take away that critical piece of documentation but to find an alternative way to get there. 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 how attorneys fare when that happens, not well. 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 took that time.
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.