Many malpractice claims arise from a client’s or third party’s allegation about what occurred, or didn’t occur, during the representation. For example, a common malpractice claim involves heirs who are specifically excluded from an estate and claim that either abuse or diminished capacity played a role in their disinheritance. While it may not seem necessary to document things that did not occur, or in situations involving third parties rather than just your client, proper documentation of these events can help protect you from certain malpractice traps.
Documenting Client and Third-Party CommunicationEstablish and maintain clear, concise, and consistent communication with your clients and any involved third parties so you can defend yourself later if a claim arises. Below are specific tips for maintaining proper communication:
From the beginning of the representation, be acutely aware of both family and friend dynamics. Who are the relatives and family friends expecting to receive something? Who wants what? Who is getting cut out? Clearly document that information in writing from the start and throughout the representation. Maintain a paper trail of all conversations throughout the process, including phone calls, texts, emails, client portal messages, video conferences, and in-person meetings. For more information about proper retention of information in client files, you will find our File Retention and Destruction Guidelines in the Office Systems and Procedures category on our website at www.osbplf.org > Services > CLEs & Resources > Forms. Using certain technologies to capture and retain information − such as saving text messages and using client portals − can be complicated. If you have any questions, please contact a practice management attorney at 503.639.6911 or use our web inquiry option at www.osbplf.org > Services > Practice Management Assistance.
Document clearly in writing who is receiving (and not receiving) what
Document what is being handled, by whom, and whenDocument specifically who is handling what duties and when, whether that is you, your client, or a third party. For example, when handling estate planning or a dissolution for a client, many tasks need to be accomplished after the matter is closed, such as renaming accounts or filing taxes. Clarify in writing who is handling those tasks and when those tasks need to be completed. For general information about client communication, see our Client Relations category in the Forms on our website at www.osbplf.org > Services > CLEs & Resources.
Be Mindful Of Your SurroundingsDocument not only communication with your client and involved third parties, but also who is meeting with whom and when and the circumstances of the meeting. Many malpractice claims involve situations where a family member or friend may meet with the attorney and the client, or somehow became involved in the attorney-client relationship.
Meet with clients alone if possibleAlways meet with your client alone if possible, without potential influencers in the room. While there may be times you need to include a third party in your client meeting, it is best to meet with clients one on one. Whether or not a third party is present, document each meeting, the date and time, and who was present.
Regardless of your area of practice, you can avoid many malpractice traps by following a few simple steps. Clearly document all communications throughout the representation and be mindful of your surroundings. These steps should help to decrease your malpractice risks and allow you to better serve your clients.