ur everyday work lives are
spent protecting our clients
and their interests. We focus
on their needs and goals (sometimes to the
exclusion of our own) in an effort to provide those clients with excellent representation. But despite our best efforts and even
despite receiving excellent representation,
clients may sometimes be disappointed in
the results of that representation and take
that disappointment out on their lawyer in
the form of a malpractice lawsuit. Although
there is no foolproof way to avoid finding
your name on the wrong side of “versus” in
a caption, there are steps you can take during your representation to reduce the risk of
being sued and to help protect yourself in
the event that you are.
One such step is to ensure that your relationships with clients and potential clients
are appropriately documented at every
stage. Documentation serves two purposes
when it comes to the prevention and
defense of potential malpractice claims.
First, it facilitates clear communication to
the client. Clear and effective communications help to avoid client misunderstandings, which can be the root cause of later
claims. Second, proper documentation also
creates a contemporaneous evidentiary
record to protect against future disputes
regarding what actions the lawyer took and
what communications the lawyer made to
the client.
This article addresses the events during
the course of a representation that you
should consider documenting—the initial
conflict check, conflict waivers, the non-
engagement of potential clients, the
engagement letter, issues of joint represen-
tation, clients failing to follow the lawyer’s
advice, billing, and the end of engagement.
For some of these events, the applicable
Ethical Rules require written documenta-
tion, but for all of them, it is simply good
practice to put the matter in writing. In
each case, the documentation will better
serve both the client and the lawyer.
1. Conflict Check
and Analysis
As lawyers, we owe our clients a duty of
undivided loyalty. The duty exists for good
reason. In addition, though not necessarily
versed in the law of conflicts, clients and
juries understand disloyalty and, unsurprisingly, react negatively to it. 1
Because of this duty, the lawyer must
determine for each new client and matter
whether the potential representation presents a conflict with
current or former clients of the
lawyer and the firm. Such checks
also should be repeated during
the representation upon events
that may give rise to new conflicts, such as the addition of
PAUL L. STOLLER is a shareholder at Gallagher & Kennedy
PA in Phoenix. He represents lawyers and law firms in
defense of legal malpractice and other claims arising out of
their actions as advocates, counselors and service providers
to clients. He also practices general commercial litigation,
including class actions and insurance disputes.
parties to a transaction or the identification
of non-parties at fault in litigation. Beyond
conducting the check for conflicts, the
lawyer should fully document the process
and conflict analysis. That documentation
should be preserved in the client file.
The performance of a conflict check
does not negate the existence of an actual
conflict. Nonetheless, documentation can
demonstrate that the lawyer took reasonable steps and was careful to evaluate
whether there was a conflict. Conversely, in
a lawsuit based on a conflict, the former
client is likely to introduce the absence of
conflict-check documentation as proof that
the lawyer did not undertake such a check
and was reckless in failing even to evaluate
the potential for conflict.
O
