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The pen is mightier than the sword

Tom Pelham despairs at the number of practitioners ill-prepared for professional negligence claims

20 August 2014

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I definitely advised the client about that point during a meeting. I think it was in 2009, but come to think of it, it may have been in 2010. But I definitely gave the advice...”

As a solicitor who defends other solicitors against professional negligence
claims, I am told variations
of this tale with depressing regularity. Good advice has been given to a client, but there is nothing to show for it when an allegation of negligence is made years later.

The importance of file
notes and follow-up letters
is drummed into us from the moment we arrive at law school. But by the time we find ourselves in front of clients, most solicitors have decided that file notes are just not for them. Notes are the preserve of people with far too much time on their hands, and quite frankly, they are boring.

It is true that making a full
file note of a three-hour client meeting is about as stimulating as an evening in with the solicitors’ accounts rules and a glass of tepid water. However,
our collective failure to record the advice we give, not to mention the instructions we receive, deprives us of one
of the most effective shields in
our armoury.

Worrying divide

I was too busy to make a file
note; the client agreed with
my advice at the meeting; it wasn’t an important point at the time. These are all explanations
I hear daily from senior partners
to paralegals, from big firms
to small ones. There does seem
to be a perceptible divide in
the profession, however.

Experience suggests that litigation lawyers (who are perhaps more inclined to view their clients as potential future adversaries) are more willing
to evidence advice given, than their transactional counterparts.

But surely that’s the wrong way round. Why are transactional lawyers not scrambling for their Dictaphones and regaling their secretaries about advice given during a particularly thrilling discussion on rights of way?

Verbal advice

There is nothing wrong with giving verbal advice and its importance is recognised by
the courts. However, solicitors who fail to document their
advice or instructions can
expect a rough ride in future negligence proceedings. In
cases where there is a conflict between the recollections of a client and their solicitor, there
is a real danger that a court will side with the client.

There is a clear perception
issue in the profession. It seems the majority of us focus purely
on the quality of the advice given. While undeniably vital, quality advice means little if it is not evidenced.

To those who doubt that, I would point to the fact that the vast majority of solicitors’ claims I deal with turn on whether or not advice was actually given, as opposed to whether the advice was or would have been correct.

Battle prep

As I’ve spent literally hundreds
of hours thumbing through solicitors’ files in search of helpful scraps of paper, I think I can spot a good file note when I see one. (Handy tips for making the most of file notes below.)

  • You can’t beat typed contemporaneous notes that coherently summarise the advice given. They are the Holy Grail of the file-note world, and, unfortunately, are just as rare.
  • For key advice, think about sending the client a copy of your typed file note, inviting them to contact you if they disagree with your recollection of the meeting. If the client stays quiet, it will be difficult for them to argue that the note is not accurate at some later point.
  • Be specific about the advice given. ‘Flagged risks to John’ is no help to anyone.
  • Remember the small points. Claims often arise out of issues that, at the time, seem inconsequential.
  • Handwritten notes can be helpful but not if your writing is illegible and there is nothing to show it in context. Record the date, the matter name and parties involved on the note and keep a copy of it with the file.
  • Take extra care with potentially contentious advice (couples and co-ownership springs to mind).

If the profession continues to ignore the importance of file notes, we will all learn the hard way. As one solicitor-client said to me after a recent trial win: “Thank god I made that file note.” SJ

Catherine Burtinshaw is away and will return in September

Tom Pelham is a solicitor at Kennedys

Categorised in:

Professional negligence