Steve Schwartz
By Steven H. Schwartz
As published in the June 2023 edition of Missouri Lawyers Weekly
We often find that a malpractice lawsuit could have been avoided with a single email confirming a conversation, or a clear retention letter setting forth the confines of the lawyer’s assignment. We tend to trust our clients, which is great when we are all getting along, but when things go south, and a lawsuit is filed, the client may recall your conversations differently than you recall them. That is why it is critical to confirm important information in writing.
When you are hired by a client, ask the client to sign a retention agreement that sets forth the scope of your retention — i.e, what services you will and will not perform, and the other terms of the relationship, including payment terms, the right, and circumstances under which, each party can terminate the relationship, etc. By setting expectations early, and limiting the scope of the lawyer’s obligations, the lawyer can avoid a potential claim down the road that the lawyer should have performed a service that they did not agree to perform. This can also avoid a fee dispute because it sets forth the terms under which the client is obligated to pay the lawyer. An arbitration provision may also be included. Consult your local professional rules of responsibility for limits on what can be included in an agreement between a lawyer and a client.
Once the relationship starts, it is important to communicate with the client in writing often, even if you have frequent verbal discussions with the client. This is important for several reasons. First, it helps you keep a written record of what you discussed with the client so that you and any other colleagues working on the case will remember what was discussed. Second, it serves as a summary for the client who may not remember, or may not have comprehended, everything you told them on the phone or at a meeting. Finally, and possibly most important, the written confirmation of the discussion can work to prevent a potential malpractice claim in case the client later remembers the discussion differently than what is in the written confirmation.
The Missouri Rule of Professional Conduct 4-1.22 requires a lawyer to maintain the client’s file for at least six years after termination of the representation. Thus, the file the lawyer creates is essentially the official file that will form the basis of the malpractice suit. If the file has a sufficient record of the communications with the client about any advice the lawyer gave, including the risks and benefits of any actions the lawyer proposed to take, the lawyer will be much better protected when faced with a legal malpractice claim.
I have defended several cases where the lawyer testified about a conversation with a client that the client steadfastly denied. However, there was no written record of the conversation and no witnesses to the conversation. Thus, the jury had to decide who to believe based on the credibility of the witnesses and the surrounding circumstances. If the conversation had been confirmed in writing, the lawsuit probably would never have been filed.
A lawyer cannot practically confirm every conversation with the client in writing and, even if that were done, it would not prevent a client from claiming that something was said in a meeting that was not said. However, the best practice for preventing malpractice is for the lawyer to confirm all significant advice in writing, including any significant decisions that need to be brought to the client’s attention. In the litigation context, for example, that would include what claims and defenses to assert, decisions regarding expert witnesses, decisions about what discovery to pursue, and not pursue, decisions about settlement (all settlement offers and demands must be communicated, preferably in writing), trial strategy, appellate strategy, etc.
When the attorney-client relationship ends, it is best to send a closing letter to make a record that you are terminating your relationship, so the client understands the lawyer is no longer handling that matter for them. That letter should also address how the client’s file will be maintained in the future.
While there is no sure-fire way to prevent malpractice claims, maintaining a good record of communications with your client is one way to reduce the chances of being sued.
Steven H. Schwartz has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 30 years.