Austin's angle: your file as lifejacket
4 Oct 12
There are many reasons for making sure files are complete. Most of them potentially involve professional survival
You’ll have gathered from these blogs that I don’t think running a solicitors’ office is always much to do with knowing the law. In fact, in a way the ability to learn and retain legal knowledge, and apply it verbally and intellectually are not helpful skills in office administration, nor indeed in risk management. No, the plodder, the recorder, the doubter are the best people to have around the firm.
One of my jobs in our organisation is to sweep up. If a transaction settled four years ago and the solicitor dealing with it has moved on, or if a client comes back to us to question something we’ve done or not done, or wants to revisit some aspect of a case or transaction, it falls to me as client relations partner to deal with it. Indeed, I was lucky enough to have a five year masterclass in file-checking as I was on client relations ( complaints) committees in the Law Society of Scotland. I have seen all 57 varieties of file and work recording, and I am pretty sure I know what is needed.
Filework is for two reasons: to justify fees, and to prevent claims and complaints. The file, which nowadays is more likely to be a combination of paper and cardboard items, and a virtual history of data entries, is life and death. It should record everything. My advice to colleagues is to record the inter-staff emails as well as client communications, as apart from the ones that say “this client is a lunatic; I have no idea why we took her on”, it may be crucial to see later on how the work was progressed and who had responsibility for carrying out the task in question. Indeed as well as firm risk management, it can be essential staff risk management in any internal query about the work.
The bane of any firm manager’s life is the staff member who says “I am sure I told her about the access problem”, or “ I always tell clients about conclusion of missives”, or “Yes I did write to her; I have no idea why it is not copied into the file." Just as bad is the solicitor or staff member who thinks that now that he or she is happy with an item of work, it can be forgotten in a “job done” way.
No. Once you take on a client and their case, transaction or work, you are in potentially a five, 10 or even 20-year period of liability. The reason the Society makes rules about how long specific kinds of files are to be kept is that until the relevant period of prescription is past (at least five years in the relationship between client and solicitor, which can only be reduced to three if you physically banjo them), you are liable for your actions.
Now coming back to the legal geniuses among us, memory is hopeless as a fine tool for recording events, and is not satisfactory as evidence in most contests with former clients. I also have to ask why would you NOT record everything? Why take the risk of a client – either forgetful themselves, or malevolent, or just unreasonable, saying 18 months down the line that you did not warn them about the opponent’s lack of funds?
Whilst knowledge may be power, writing is security. Keep everything recorded in file and database, and better still copy most of it to the client. We had a transaction in which the mortgage broker kept promising the loan papers for weeks, until they finally arrived by fax on the morning of settlement. We did the security and the report on title, but the lender came back to say that some item was missing. It was an item the loan arranger should have obtained earlier, but we waded in and sorted the problem out in a couple of hours. The transaction could not settle that day but settled the following day. The weaselly broker tried to palm the blame onto us – we as solicitors had the loan papers; we should have sorted it out blah blah. We pointed out to the client that we had told her we could not move mountains, especially if we don’t know they are there, but in any event, we had written to her in clear terms at the outset to say that we could not guarantee to settle a transaction if the loan papers were not with us at least a week before the date of entry. We referred her to the emailed notes on this, and heard no more about it. How would we have fared if there were no written evidence of our warning?
My wife is a maths teacher, and she refers to this as "showing your working". I dimly recall doing arithmetic and maths exams and it being not enough to get the sum/equation/calculation right, but you needed to show how you had got to the answer. Indeed the correct working and the wrong result still got you some marks.
Yes, I concede it can be tedious to write up notes of a conversation you may have on your mobile phone while at court, or to save an exchange of short informal inter-staff emails in the case management database, but I have had too many occasions over the years where what seems like too much information is a life-saver professionally, financially and reputationally.
So, going back to my opening paragraph above, being a brilliant lawyer is a great thing – I wish I was one – but functioning in a law office is not about being the hare rampaging to the line while leaving nothing but some vestigial pawprints here and there. It is about being not even a tortoise, but a snail, leaving behind you a visible, detailed, permanent trail.
And lest we forget. If it’s not recorded, you can’t charge/justify/defend a fee for it.