OSB Professional Liability Fund

Reduce Malpractice Risk by Properly Managing Files

notebooks
May 4, 2018
by Hong Dao

How you manage your files can present a malpractice risk. Proper file management can help you reduce the risk because it allows you to find the documents you need and encourages documentation. One aspect of file management is implementing a system to organize, store, and retrieve files. When you cannot find documents because they are misplaced, lost, or not properly labeled, it might jeopardize the success of your client’s matter or affect your ability to represent the client. It also may lead to missed deadlines and other malpractice risks.

The second and more important aspect of file management is documentation. It is essential that lawyers keep a record of their communications with clients and other parties, as well as major events and milestones related to the client matters.

Documentation serves many useful purposes. It conveys information in writing to clients and gives them time to process the information. It helps prevent misunderstanding by giving the client a chance to dispute the content of the conversation. It also helps the lawyer articulate the thought process behind an action or a decision. Finally, it may help ward off a claim for legal malpractice and provide the lawyer with evidence to defend against one.  If a conversation is not documented, the client can later argue that it never occurred. But if the conversation is followed up with a letter to client, it is harder to dispute it later.

Lawyers can document the files in different ways. The first effective method is to contemporaneously memorialize the conversation or event in writing and then promptly send it to the person with whom you had the conversation by mail or email or any manner you know he or she will receive it. The second method is to write a contemporaneous and detailed memorandum to the file.  The third is to take handwritten notes during the interaction or conversation. The least effective method is doing any of those things after the fact—not contemporaneously.

Lawyers need to use judgment in deciding which method to use while keeping client relations in mind. Some clients may get annoyed when you send them too many “CYA” letters. You might need to explain the purpose for sending the letters (e.g., convey information, give them time to process, prevent misunderstanding, etc.).
 
Below are some areas you should document:

  • Commencement, scope, and termination of representation – Use an engagement letter to document when the representation of a client begins and the scope of your legal services to avoid misunderstanding on what you will do for the client and when.  Use a disengagement letter to document the termination of the attorney-client relationship when the matter is concluded or for other reasons. A nonengagement letter should be used when declining a prospective client. This letter documents that an attorney-client relationship does not exist and that the lawyer is not responsible for any deadlines or statute of limitations in the matter. Both nonengagement and disengagement letters will help protect lawyers against allegations they failed to follow up on a matter before the statute of limitations expired. Sample engagement, nonengagement, and disengagement letters are available here.  
     
  • Client’s instructions and lawyer’s advice – Follow up with a letter to a client to document any advice given to the client and the client’s instruction. Decisions about settlement, authority to settle, dismissal, or appeal should all be documented. This will help avoid finger-pointing if the matter goes south and the client does not get the result desired.
     
  • Important conversations with clients, opposing parties, and other parties involved – By documenting these conversations, you will have evidence to help resolve any claims for malpractice.
     
  • Major events and milestones – Any significant event that happens in the client’s matter should be documented, such as filing of pleadings or the court’s ruling on a motion. Even when the matter is not currently active, it’s still a good idea to inform clients in writing of major milestones in the case and its status. This might help stave off a future complaint you didn’t take action on the matter.
Proper file management, particularly documenting the file, can help improve client relations (a major risk factor) that go a long way in malpractice avoidance.


Special thanks to Bruce Schafer, recently retired Director of Claims at the PLF, for his input on documentation.