Note it down - or lose out

Attendance notes: are you diligent?

Lack of attendance notes is often identified by insurers and panel solicitors as a significant handicap in presenting a successful defence on behalf of an insured practice in the event of a claim. Similarly, the absence of file notes can present significant problems in responding to client complaints.

There have been situations where, following a meeting or discussion between solicitor and client, the subsequent actions of the solicitor produced, to the client’s mind, the “wrong” result. Because of the lack of a file note, the solicitor had no record vouching his understanding of the scope of work and was relying on his memory of the wide ranging discussion with the client.

Case study

The client’s file is passed by Mr Lovelace to his assistant, Thorpe, for action. Mr Lovelace had discussed the exercise of an option to purchase part of a property but failed to record this instruction on the file. However, he had a clear recollection of this and had diaried the matter. Once the file had been passed over, the diary entry was removed from the system by Lovelace’s secretary as Lovelace was no longer the “owner” of the file. The absence of a file note detailing these instructions resulted in no action being taken by Thorpe.

File notes are seen by some as a significant chore, an unnecessary additional burden and a barrier to the expeditious progress of the client’s matter. The reality is that, without adequate file notes, the practice is at an immediate disadvantage when it comes to investigating and defending any claim. Bear in mind too that claims may arise many years after the alleged negligence. The solicitor dealing with the matter at the time may have left the firm or be unable to recollect what happened.

Supporting evidence

In the absence of a file note, it is difficult for a practice to provide supporting evidence for its version of events, where the client has a contrary recollection. With a file note to support the solicitor’s recollection, the prospects of successfully defending the complaint or claim will be improved.

Case study

Mrs Melville intimated a claim against Pequod & Co who acted for her in her divorce. She maintained that Pequod failed to advise her properly of her entitlement to a share of her ex-husband’s substantial pension.

On review of the file, Mr Pequod is reminded of the challenges he had encountered in handling Mrs Melville’s case. She had been desperate to get the trauma of divorce and financial settlement over quickly – to the extent that she was prone to disregarding advice regarding entitlements as this would “drag things out”.

What would the insurers want to see on the client file? Ideally, evidence of a letter to the client confirming Mr Pequod’s advice to the client and spelling out the potential consequences for the client of proceeding contrary to that advice. As an absolute minimum, a file note recording the conversation in which Mr Pequod delivered that advice and warnings.

The file note needs to be legible and ought to be in its proper place, chronologically, on the file. Beware the typewritten file note that looks good but makes no sense; the file note written on a post-it note that goes astray; and the file note that you are certain you made at the time but never finds it way on to the file.

Now is the time

If file notes are not made at the time or immediately after the discussion, there is a real risk:

• that the note written or dictated at a later date is not an accurate reflection of the discussion;
• that the note reflects something that, afterwards, you reckon you discussed or feel you ought to have discussed but wasn’t part of the discussion at all;
• that the note omits to record a critical part of the discussion;
• that the note is abbreviated to save time – leading to ambiguity;
• that the note never actually gets written.

The passage of time plays tricks with the memory. In the event of a claim, which of the following would be the most comfortable situation if your file is subjected to scrutiny?

• you can clearly remember what was discussed with the client at a particular meeting, regardless of the absence of a file note;
• you can clearly remember what happened, even though the file note is ambiguous and may not adequately reflect your understanding;
• you cannot remember the discussion at all and there is no file note;
• you cannot remember the discussion and there is a file note that you completed but which you cannot decipher;
• you cannot remember anything about the meeting but there is a comprehensive file note that was clearly made at the time of the discussion, setting out the discussions at length and summarising the action points. Anyone reading the note can clearly see the thought process adopted at the time and the options that were set out to the client along with your recommendations for action.

Pressures and errors

Pressure of work often gets in the way of consistently following our firms’, or our own, “best practice” when it comes to keeping files up to date and in good order with meetings and conversations comprehensively documented on the file. If there is a tendency to regard attendance notes as ancillary to the “real” work of advising clients, bear in mind that difficult-to-defend claims often result from situations where a solicitor maintains that the legal advice actually given was sound in the circumstances but the advice given cannot be evidenced from the file. In the absence of evidence to support the solicitor’s account, there is a real danger that the client’s contrary view will ultimately be preferred.

Claims are very often the result of “housekeeping” and administrative errors rather than errors as to substantive law. For this reason, a comprehensive risk management approach to practice must address the apparently mundane housekeeping issues such as recording of attendance notes.

Challenges of pace

Certain environments, such as fast-moving client meetings, completion negotiations in commercial matters, doors-of-court settlement discussions, may not lend themselves to taking time out to record the progress of discussions.

In these scenarios, making conventional attendance notes may not be feasible. However, it is in this kind of situation that miscommunication can occur in the heat of the moment. Recollections as to what was or was not discussed and the options presented and considered can become somewhat hazy.

Just because the transaction moves fast does not mean that the risk is different. The risk controls deployed need to adapt to the situation and the type of the transaction. For instance, in a completion meeting, that might mean making notations on revisals to drafts containing relevant information that otherwise would be in a file note.

Remember, a claim may not surface for many years after the alleged negligence. The Master Policy insurers regularly receive intimations where the work was carried out more than five years earlier. In a recent commercial property matter, the alleged negligence occurred more than 15 years prior to intimation of the client’s claim. However good one’s memory, it is difficult to maintain a clear recollection of what happened after that period of time, and contemporaneous file notes (in whatever format) will be invaluable.

Case study

Mr Creek made a claim against the solicitors who acted for him in a reparation claim for injuries he sustained as a result of an accident at work. The solicitor concerned is adamant that Mr Creek readily acknowledged at the time that the settlement was the best he was going to get in the circumstances. Liability had been disputed, there were three different accounts from the three witnesses and Mr Creek had been reluctant to give evidence. Settlement was negotiated with Mr Creek’s authority at the doors of the court at a sum well below the sum sued for but Mr Creek now alleges that the settlement was reached against his will.

In addition to a letter issued to the client very promptly confirming the terms of the settlement, the file ought to have included an attendance note giving details of the discussions at court and confirming that the client’s authority was obtained. Ideally, there ought to be file notes too evidencing discussions with the client ahead of the proof rehearsing different potential outcomes and the costs implications of settling or of fighting on.

I’m fine – it’s them

Sometimes, your own efforts in managing risk effectively are undermined by the performance of others in the practice. Failure by colleagues in any part of the practice to make adequate file notes ought to be a concern. The claims experience shows that no practice area is immune from claims. A practice’s risk management procedures are only as effective as the least used system or the person who is the least inclined to implement the relevant systems.

Inconsistency in operation of risk controls – whether between individuals, teams, departments or offices – may justify a comparative review of:

• level of risk awareness;
• effectiveness of training;
• effectiveness of monitoring; and
• extent of enforcement of risk management controls,
• across the firm, and an action plan to address any unacceptable inconsistencies or gaps.

A rule of common sense

The critical question to be addressed in relation to attendance notes is “What are they for?” In part, they assist you in the efficient conduct of business; in part, they help protect you from risk. They are not additional bureaucracy imposed by the Society, the insurers or Marsh. There is no practice note mandating their use.

Experience has shown that an absence of proper records can have an adverse effect on a firm’s experience of complaints and claims.

If you find that you are struggling to maintain up-to-date file notes or do not see their benefit, you should consider how you might respond to a claim on a file where there are only limited or sketchy file notes or none at all and the claim boils down to a difference of opinion about precisely what instructions or advice were given.

Whether file notes are handwritten, or typed, or take the form of copies of emails to the client rehearsing what had just been discussed, they have a vital role to play in your practice’s risk controls.