A trail of decision-making breadcrumbs

Attorneys are no stranger to the practice of writing - whether it be note-taking, drafting, revising or making a file. When dealing with opposing counsel or party, for example, attorneys know all too well that sometimes it is best to reduce discussions to writing in order to ensure an accurate record of the representations made or to preserve an issue. While attorneys may recognize the benefits of such approaches, they do not always take their own advice when it comes to documenting their decisions on a matter or recommendations to a client during the course of a representation.

The number of decisions an attorney makes during a typical representation could be extensive. Whether to file a specific motion and, if so, when? Whether to push back on a specific contractual provision or simply tweak its language? Should the client pursue settlement of a dispute and, if so, on what terms? The type and magnitude of these decisions vary. And while they could fairly be considered routine, they may involve a mix of attorney analysis and recommendation coupled with client approval. They could give rise to later questions regarding what decisions were made and why.

A well-documented written file could help answer those questions. Below are some considerations in deciding how to document the file.

Deciding what and how to document

It is generally not feasible to document in writing every single development or recommendation made in the course of representation, but lawyers can give thought to what would be helpful and feasible. One such category would be matters that may be difficult to prove in the absence of additional evidence upon conclusion of the matter. For example, it could include a decision of whether to file a specific motion, a specific term or provision in a contract, or whether to retain a specific consultant or expert.

Not only does documenting in writing serve to protect the attorney from later scrutiny, it may also be helpful in managing client expectations. The written record can help foster candid discussions with a client about what a "win" might look like or what risks a particular course of action may bring. If the client does not like the outcome at the end of the representation, the written record can be a helpful tool.

Attorneys may take different approaches to document their decisions. For example, an attorney may prepare a client memo for significant recommendations to pursue, or to forgo a particular course of action - in which the attorney identifies the benefits and risks of the potential options. Other and less pressing matters may be better suited to be documented in a quick email. There is no one-size-fits-all approach.

Though thorough documentation may suggest that an attorney is on the defensive, correspondence could be drafted with a neutral tone and simply summarize a decision or conversation without indicating a dispute with the client is expected.

If it's not in writing, it's hard to prove that it happened

In a common legal malpractice dispute, the client may argue that they did not really understand the risks of a certain course of action if a representation does not end the way the client hoped. In that scenario (and others), the attorney may have to defend or justify a decision that was made during the representation, even when those decisions included input from or consultation with the client. It is here where written documentation could prove valuable.

Memory is an imperfect phenomenon, shaped by the viewer's perspective. It is no surprise that people's recollection of specific conversations may differ, especially with the passage of time or an unexpected end result. Although the attorney may remember that the conversation involved an assessment of the risk of the recommended course of action, the client may recall the strategy being described as a "sure thing" by the attorney. Thus, it can be difficult to prove what happened after the fact if certain decisions, assessments or risks are not documented in writing. Although it is not necessarily a "breach" of the standard of care for such a decision to go undocumented, that could result in a fact finder crediting the client's recollection of events.

Documenting important decisions in writing can be a powerful tool to reduce this risk. It helps inform the client what services are being performed in real time and the associated risks.

Evidence to support judgmental immunity

A legal malpractice case may attempt to review or second-guess the attorney's judgment in order to determine whether the course of conduct was reasonable based on the attorney's experience, as well as the attorney's research and preparation. Based on the circumstances, the attorney's decision may be afforded a level of deference even if the end result was not favorable. Indeed, many states have adopted some form of the judgmental immunity doctrine. The doctrine generally holds that, where an attorney acts in accordance with their best professional judgment, such decisions typically cannot be the basis for a legal malpractice claim. In California, this doctrine immunizes attorneys from liability resulting from an honest error in judgment concerning a doubtful or debatable point of law.

The judicial immunity doctrine is a reflection of the long-standing principle that reasonable lawyers can disagree on the "best" course of action for a representation and that hindsight is not sufficient to establish liability. As a result, the doctrine can be a reliable shield for attorneys defending against legal malpractice claims. If an attorney has documented the basis for decisions and the underlying factors considered in reaching that decision, then the attorney may be more likely to prove the decision was the result of the reasonable exercise of the attorney's judgment.

By writing things down, attorneys may be in a better position to defend future legal malpractice claims attempting to call their decision-making into question.

Patrick Todd, an associate at Dentons US LLP, contributed to this article.