By Mark Bassingthwaighte, Esq.
mbass@alpsinsurance.com
My experience consulting over the years with thousands of attorneys who practice in firms of all shapes and sizes all over the country taught me that the overwhelming majority of attorneys in practice are competent, well-intentioned professionals. To speak in the vernacular, our insureds are good folk. Yet, some of these attorneys have had to deal with a claim or two at some point in their career while others, even a number who were nearing retirement, never did. An interesting question is why. Of course, there are the obvious answers to include occasional missteps like missing a deadline, dabbling in an unfamiliar practice area, an impairment was in play, or poor client selection; but these examples don’t cover it all.
There is another explanation behind some of our claims that is not discussed often enough and, in my opinion, not fully appreciated for the risk it truly is. The misstep is simply getting too comfortable in one’s practice. I call this the comfort trap and the reasons behind it vary. For some, the daily routines of practicing law can become all too familiar and attention to detail starts to wane. For others, routinely working with long-term clients or the same competent staff for years on end can lead to the creation of professional and personal friendships. While this naturally brings about an elevated level of trust; here too, attention to detail can decline over time. Thus, there is a downside that can come with comfort in routines or with long-term clients and trusted staff, and it’s a trap because of the natural development of casualness and informality that all too easily follows.
The downside is this feeling of comfort can lead to a failure to thoroughly document client files. When you allow that to happen, you are setting the trap. It’s failing to document scope of representation with repeat clients because you start to assume the need for this type of documentation is no longer necessary. It’s not wanting to risk offending long-term clients, so you stop using engagement letters and closure letters. It’s failing to continue to use checklists because you have gone through the same series of steps so many times that you’ve come to view checklists as a nuisance. It’s trusting the relationship with your client so much that you now consider capturing and preserving substantive email and test messages as a waste of time. It’s taking shortcuts like not reviewing letters or documents before they’re sent out, failing to confirm that someone’s decision as to when a statute of limitations will run is accurate because your staff really do know what they’re doing, or skipping a formal conflict of interest check because relying on everyone’s memory seems equally effective. It can even be not wanting to document a file with anything at all because you are simply “doing a favor” for a long-term client, a family friend, or a staff member so you don’t view this as formally taking on a new matter.
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Feeling confident in your practice and comfortable with your clients and staff is a good thing as long as the level of comfort doesn’t result in a related casualness with file documentation and/or the procedures that get you there. When you begin to rationalize away the need to thoroughly document any given file, you really are setting a trap that can ensnare you at some point further down the road.
If you ever find yourself going in this direction, stop for a moment. Think about what’s going on and make any necessary course corrections. For example, I can accept that a concern over the use of a formal contract each time a long-term client brings a new matter to your firm is legitimate. I get it. You don’t want to risk offending the client. However, the answer is not to simply take away that critical piece of documentation. Come up with an acceptable alternative. Couldn’t you accomplish the same goal by sending a confirming email or informal letter of clarification? Of course you could.
Here’s the bottom line. In the context of a malpractice claim or a disciplinary complaint, the “failure to document” misstep often turns into a word against word dispute. It’s important for you to know and even more important for you to remember that attorneys don’t fare well when that happens. This is why you want to make sure all files are thoroughly documented. Yes, doing so with every client file may take a little extra time; but should you ever find yourself facing a malpractice claim on any one of those files, trust me, you’ll be glad you did. You have my word.
Mark Bassingthwaighte, Esq. Is the resident Risk Manager at ALPS Insurance. To learn more about how ALPS can support your solo or small firm visit: alpsinsurance.com
