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the client has been informed of why you made your recommendation,
the benefits of proceeding according to your advice, and the potential
legal ramifications that might occur by not following your advice. Of
course, don’t forget to also document the client’s stated reasons for
making the decision to ignore your advice.
The next trap underscores one of the learnings from the story above.
When closing a file, make certain items like attorney notes, drafts
of documents, memos, billing statements, and all substantive email
exchanged are preserved, because they serve as documentation of the
work done, advice given, and the decision-making process. Again,
these documents should be maintained for the life of the closed file.
Pay particular attention to email. All substantive email should be
captured and preserved with the relevant file. I have visited too many
firms where this isn’t the case, and frankly, that’s asking for trouble.
Finally, don’t get caught in the comfort trap. Many attorneys
thoroughly document the files of “problem clients,” yet remain
slack in the documentation of files with their longstanding “good
clients.” More often than not, this is due to a level of comfort that has
developed with longstanding clients. Be careful, because too much
comfort can cloud one’s perception of what needs to be documented.
Understand that problem clients are not the only clients who sue. Take
whatever time is necessary to thoroughly document all files throughout
the course of representation. The peace of mind that follows will be
much better than the feeling of regret for not having done so should a
claim ever arise, particularly one brought by a long-term, good client.
This comfort trap also arises in another situation you should keep in
mind. In short, never forget you don’t get a pass when doing a legal
favor for a friend or family member. Treat this matter the same as
you would if you were going to charge a paying client for the same
work. Deadlines need to be calendared, conflict checks need to occur,
phone calls need to be documented, etc. Friends and family do sue
when things don’t turn out the way they expected; and when they do,
if you happen to have no documentation of the advice given and the
decision-making process, you’re about to learn a hard lesson just like
the lawyer in our story above did.
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