Why Documenting What You ’ re Not Retained to Do Can Be Important Too
significant amount of information had been obtained and shared with the nonprofit ’ s client , more than a year into this effort she was still trying to obtain some additional video footage . This is when things went off the rails . While reaching out to ask about the additional video footage , the nonprofit ’ s client also wanted to know what the recent running of the statute of limitations meant for her case . Of course , in the lawyer ’ s mind she never agreed to pursue this claim . She viewed her role to be limited to information gathering . Unfortunately , the nonprofit ’ s client appeared to see it differently .
By Mark Bassingthwaighte
In my experience , too many lawyers appear to be quite comfortable running with an assumption their client ’ s understanding of what the scope of representation aligns with theirs . This is one of the reasons why I suspect trying to convince lawyers to document scope of representation on all new matters is a never-ending task . Getting buy-in on documenting what one has been retained to do is hard enough . Now , I ’ m going to add to this advice a recommendation that lawyers should also be thinking about documenting what one has not been retained to do . It ’ s an uphill battle , I know ; but it ’ s a battle worth fighting . Here ’ s an example of why .
A nonprofit regularly reaches out to a plaintiff personal injury lawyer on behalf of clients of the nonprofit . After a family member was shot and killed by police , this nonprofit retained the lawyer for the purpose of gathering as much information about the shooting as she could , to include obtaining video footage of the shooting from the police department . The purpose was to provide the nonprofit ’ s client with information that would help the client understand what led to the shooting . While the lawyer worked with the nonprofit ’ s client , the nonprofit paid her fee . Documentation of the lawyer ’ s role was minimal , consisting primarily of a few emails with both the nonprofit and its client , none of which properly addressed the issue other than to say she would take care of gathering information .
What the lawyer found out was pretty much what she expected . The fatal shooting appeared to be justified . Of course , this process wasn ’ t something she could take care of in a few short weeks . So , while a
After that call , the lawyer ’ s immediate concern was how her reputation might be damaged when the nonprofit ’ s client complains to the nonprofit . Her fear was future referrals from the nonprofit might dry up . In my mind , I was concerned about the possibility of a grievance and / or a malpractice claim being filed .
This situation didn ’ t need to play out the way it did . The amount of time it would have taken to document and make sure both the nonprofit and its client had a clear understanding that the scope of representation was limited to the gathering of information and explicitly didn ’ t include taking on the responsibility of filing a claim would have been minimal .
I do understand the hassle factor here ; and I will readily admit many times running with assumptions about the scope of representation work out just fine . All I can say is this , are you prepared to deal with the consequences when running with such an assumption proves to be the wrong call ? This story isn ’ t a one off . The failure to properly document scope misstep is one malpractice insurers regularly must address . With every new matter , take the time to clarify and document that you and your client have a mutual understanding of what your scope of representation is , and when called for , what it isn ’ t . Five minutes really can prevent a serious headache down the road .
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Further , by making this publication or document available , ALPS is not rendering legal or other professional advice or services and this publication or document should not be relied upon as a substitute for such legal or other professional advice or services . ALPS warns that this publication or document should not be used or relied upon as a basis for any decision or action that may affect your professional practice , business or personal affairs . Instead , ALPS highly recommends that you consult an attorney or other professional before making any decisions regarding the subject matter of this publication or document . ALPS Corporation and its subsidiaries , affiliates and related entities shall not be responsible for any loss or damage sustained by any person who uses or relies upon the publication or document presented herein .
ALPS Risk Manager Mark Bassingthwaighte , Esq . Since 1998 , he has been a risk manager with ALPS , the nation ’ s largest direct writer of professional liability insurance for lawyers . In his tenure with the company , Mr . Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management , ethics , and technology . Mr . Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association , where he currently sits on the ABA Center for Professional Responsibility ’ s Conference Planning Committee . He received his J . D . from Drake University Law School .
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