THREE-(3)-YEAR LIMITATIONS PERIOD FOR LEGAL MALPRACTICE CLAIMS NOT ABSOLUTE SHIELD FOR PRACTITIONERS SEEKING TO RECOVER LEGAL FEES*

Documenting Files When Communicating With Clients

Documenting a client’s file may be one of the easiest (and most overlooked) solutions to the array of problems that could potentially arise out of the attorney-client relationship. Effective communication, as well as maintaining proper documentation of communications with clients, is a significant tool in risk management.  It is crucial that lawyers memorialize key decisions wherever necessary or possible during the course of representation to reduce or eliminate the possibility of a dispute.   In fact, many malpractice claims and grievance complaints against lawyers involve inadequate client communication practices.

Letters of Engagement/Disengagement Shutterstock_3932800

Retainer letters play a key role in defending or even avoiding legal malpractice claims altogether.  Engagement letters play an important role in reducing the frequency of billing disputes and should go beyond the mere recitation of billing rates and cycles to include details regarding the scope of representation and anticipated further actions.  A thorough letter of engagement should include:

    • All entities and persons the lawyer represents;
    • All matters the firm has agreed to handle and, if appropriate, those it was not retained to handle;
    • The scope of the representation and the agreed upon fees;
    • The attorneys who will be representing the client with their respective rates;
    • The ability to resolve fee disputes through mediation or arbitration;
    • How expenses will be billed and how the retainer, if any, will be replenished; and
    • If the retainer is not replenished timely, consent is given to withdraw.

A lawyer should make sure that a new or prospective client fully understands the nature of the attorney-client relationship, including what the client can reasonably expect from the lawyer and vice versa. If the client does not have a proper understanding of the attorney-client relationship, the lawyer should take steps to educate the client. An example of a Statement of Client Rights and Responsibilities can be found at 22 N.Y.C.R.R. § 1210.1. This information should be given to a client prior to signing a written retainer agreement and a signed copy should be kept in the file.           

Disengagement (or termination) letters should also always be sent to the client when an attorney withdraws from a case. Therein, the attorney should (1) advise that the firm no longer represents the client in the matter, (2) recommend that the former client seek the advice of other counsel, as appropriate, and (3) provide all upcoming important dates and deadlines.  This serves to ensure that the client is not mistakenly relying upon the attorney for further conduct and also starts the clock running on the statute of limitations for any claims.   

Proper Communications with Clients

Lawyers should always keep clients informed – even courtesy communications such as “there have been no developments” or “we are still awaiting a decision from the court” go a long way. It is important to ensure that the client feels as though he/she is part of a team. While the attorney should act as a guide, he/she should also consider the input, comments, and instructions of the client. The attorney should seek the client’s input on important activities, and be sure to make a written record of client communications, especially when the client and attorney disagree.

There are no easy or objective tests that define important or “big” decisions to consult with the client about, but you usually have a sense of what they are. They are situations where you are making a complicated, important or judgment-call type decision. Some examples include:

  • The commencement, or decision not to commence litigation on behalf of the client;
  • Responding to allegations in a complaint;
  • Impleading a third-party defendant;
  • Producing documents during discovery;
  • Pursuing dispositive motion practice;
  • Engaging co-counsel or experts to assist with the client’s case;
  • Deciding whether it is in the client’s best interests to settle or proceed to trial;
  • Appealing a decision or verdict; and
  • Any other significant, difficult, or “judgment call” decision.           

In these instances, particularly ones which involve judgment calls, it is important to memorialize in writing the available options and the basis for the final decision. A short letter or e-mail will often suffice. Where possible and appropriate you should: (a) identify the problem or issue; (b) outline the various options for resolving the problem; (c) specify various efforts made to effectuate the aforementioned options; (d) contact the client to advise him/her of the problem, possible solutions, and your efforts to effectuate a resolution which is in the best interests of the client; and very importantly; (e) document the final decision in a correspondence to the client.

In sum, documenting a client’s file is just as important as every other task the lawyer is retained to perform. Here is a helpful checklist that all law firms can employ to assist with documenting files:

  • Prepare writings that explain the reasons why a decision was made;
  • If possible and appropriate, confirm in writing that client shared in making decision;
  • With respect to appeals, be sure to document that you were instructed not to file or perfect same, along with any deadline dates;
  • All important decisions made by phone or in person should be memorialized in writing;
  • Advise clients of all settlement discussions by documenting same; and
  • If you are outgoing counsel, substituted out, or asking to be relieved: always make and keep a copy of your file.

In addition to preserving the integrity of the client’s file, implementing a robust documentation system can help effectively detect and minimize client-based problems before they arise. Taking the time to properly document your file now could prove particularly helpful in the future – especially in the event of a lawsuit or grievance complaint – and, moreover, it will likely serve to prevent such claims in the first place.

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* This article was prepared by Andrew R. Jones, Esq. and Ashley L. Glazewski of the New York City-based law firm of Furman Kornfeld & Brennan LLP. Andrew and Ashley work as part of a team of 15 lawyers and paralegals devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters.  For more information about the above topic or the authors, please visit: www.fkblaw.com.

We trust that the above article was useful and thought provoking; however, please note that it is intended a general guide only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.

For more information on LPL coverage generally and how conflict checking and client selection can affect the exposure of your firm to malpractice claims, contact USI Affinity today.

 

 

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