Virtually every lawyer who is sued for legal malpractice or malicious prosecution has committed some kind of error. However, in defending such suits, it is often clear that the error is not an act or omission of legal malpractice, or conduct that would support malicious prosecution; rather, it is typically the failure to document the file with memos, telephone logs, transmittal forms, and/or reports to the client.
Client allegations that my lawyer “guaranteed” we would win or “never told me” the risks involved in the suit are met with the lawyer’s protestation otherwise. When there’s no documentation of discussions of likelihood of success or risks of loss, etc., the legal malpractice case becomes a credibility contest between client and lawyer, with a serious risk of a plaintiff’s verdict.
To avoid this credibility contest — and any malpractice claim in the first place — consider these 5 tips:
- Include a “no guarantee of success” provision in your retainer agreement. If there is no written retainer agreement — which is never recommended — then include such language in a letter acknowledging and accepting the representation.
- Send written reports. Memorialize in letters or emails to your client significant procedural and substantive events in the case. Send your client a letter outlining any significant issue and strategy decision. Even a brief letter is better than no letter if the client claims that the issue was never discussed. Also, sending your client copies of correspondence to opposing counsel will keep the client advised of matters being discussed and be proof of these matters.
- Memorialize transmission of pleadings and discovery. Memorialize the transmission of pleadings, orders, discovery items, depositions, etc. that you send to your client. A fax cover sheet or a transmittal memo that shows the box “For Your Information” checked and identifies the documents transmitted can avoid later anguish over whether the jury will believe the lawyer when he or she testifies that the client was sent certain documents or was advised of certain issues.
- Itemize your bills. In hourly cases, itemize your bills in as much detail as feasibly possible. Although most lawyer’s preference would be to send a bill that says “For Professional Services” with a total amount owed, don’t do that even if your client permits it. An itemized bill will serve as a diary of meetings, telephone conversations, pleadings prepared, and issues researched. In contingent cases in which no itemized bills are prepared, transmittal letters and reports to the client are even more important.
- Take the time to document. When asked why there is no documentary support in the file evidencing the lawyer’s position, the lawyer often explains that there wasn’t enough time to send reports and/or the client did not want to pay for reports. Take the time; even brief reports are better than none. If the client has instructed you not to report or not to send certain items, memorialize that instruction in a letter to the client. But, even clients who say they do not want to pay for reports generally won’t object to modest reporting costs, particularly if they are told about them up front. When you have multiple clients, and have appropriate waivers, one written report or email to all clients can be less expensive than multiple repetitive telephone reports to each client, followed by telephone log notes.
In a perfect world, lawyers who have done nothing wrong would not get sued. Because we do not live in such a world, the best we as lawyers can do is create a file that approaches perfection from an evidentiary standpoint. In addition to the benefit of keeping clients informed and demonstrating to clients that you are in control of their case, it may obviate an unfounded malpractice suit.
On the related issue of resolving fee disputes without legal proceedings or malpractice claims, check out CEB’s program Attorney Fee Agreements & Fee Disputes: Basics and Recent Developments on August 20, 2010 in Los Angeles and available On Demand on August 23rd. For sample fee agreement forms that include the disclaimer of guaranty, go to CEB’s Fee Agreement Forms Manual (2d ed Cal CEB 2007).
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