The first line of defense in any legal malpractice claim is that the lawyer on the front end, before any work was done, (a) identified who was the client (and who was not the client) and (b) described the work to be done. Many claims involve lawyers who lost their way as to who they were representing (for example, the company and not the individual officers). Sometimes it is prudent to actually send the “I am not your lawyer” letter and suggest to the other officers or directors that they need their own counsel. The important engagement letter specifies what the lawyer was asked to do. With revisionist history, clients often later claim “no, you were supposed to do X and Y”. The engagement letter specifies what work was to be done and is “Exhibit A” in any claim against you. See 5/2/13 “Why the Engagement Letter”.
Document any changes in the retention after the engagement with even a simple e‑mail that “you have asked us additionally to do this, and otherwise the terms of our engagement letter applies to this work as well.” The engagement letter also allows you to meet all of the professional obligations you have in your jurisdiction with regard to billing, file retention, file destruction, costs, etc. Finally, disengage when required with a document that clearly says you are no longer their lawyer. After the work is over, use the closing letter as a client relations tool for your next matter from them, but clearly put an end to the project at hand with the closing letter saying the described work has ended. That helps with conflicts later.
The engagement letter is the critical first documentation for your file. The watch word throughout should be documentation. In this high speed world, do not forget the old-fashioned letter to the client, even if it is e-mailed. If they are not following your advice, you had better have proof of that when the wheels end up in the ditch.
My friends at the Buffalo, New York firm of Goldberg Segalla (Neil and Tom’s firm) publish a professional liability column and recently discussed the need to document advice to prevent the dreaded malpractice claim. They cite a New Jersey case where the documentation by the lawyers on their disagreement with the client’s course of conduct carried the day for the defense.
Pick up any one of the files around your desk and ask yourself how that file would look from the witness stand. Are your actions and advice suitably noted so you could read and produce them as an exhibit? When the client’s deal goes sideways, someone other than the client is often thought to be at fault. If they point at you, be regularly able to show your file which reflects the opposite if appropriate. Lawyers, protect yourselves.
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