who has already expressed dissatisfaction . How do you expect to be able to defend yourself if and when this problem client alleges you were responsible for his eventual misstep when the documentation that the client was properly advised is no longer in your possession ?
Yes , the file may eventually be obtained after much effort ; but don ’ t be surprised to learn when the file is obtained the key documentation you knew would protect you isn ’ t there . Now you ’ re into a word-against-word dispute , and as the attorney responsible for creating the documentation , its absence is going to be problematic . In sum , by giving up control of a file you risk having to deal with unintended consequences later on . Taking the easy way out isn ’ t necessarily the best way out .
Similar problems can arise when files , or more often limited notes , are turned over after an attorney has handled a small matter as a favor for someone . Even worse is when there is no attempt to create any record at all . A good example of this is after sharing some limited legal advice during conversations with prospective clients or with anyone outside of the office setting . The misstep here is in thinking that because there was no billable time recorded and no formal attorney-client established , there ’ s no need to keep a record of what occurred .
Think about it this way . There is no such thing as casual legal work or “ legal light ,” if you will . Legal advice is legal advice , regardless of whether you collect a fee or where or how the advice or service was delivered . To demonstrate the point , attorney-client relationships
have been found to have been created by casual conversations in cocktail party settings , conversations on the courthouse steps , and even as a result of speaking at educational events . While you are well advised to always document your advice and the decisionmaking process regardless of the person or place involved , all of that may be for naught if you fail to keep a copy of that documentation based upon a misguided assumption regarding the nature of the work ( it was a favor ) or the nature of the relationship ( the work was declined ). Doing so is for your own protection .
Even more surprising are the times when attorneys complete the work , feel that a very satisfactory outcome was obtained , and instead of keeping a closed file they make the decision to destroy the file after a short period of time . I hear statements like : “ This is how we keep storage costs down ” or “ If there is no file , the client will have a hard time proving any allegation of malpractice .”
This belief that what doesn ’ t exist can ’ t be used against you is woefully misguided . First , you have no idea what the client has been keeping and again , in a word-against-word dispute , you ’ re going to be in a very tight spot . In short , if you can ’ t produce any documentation , it didn ’ t happen , or it wasn ’ t said . Taking this further , consider how a jury might look at it . Might not the relatively quick destruction of a file suggest it was destroyed for a reason ? Perhaps there was something to hide ? In this day and age , where digital storage is downright cheap , keep your files for a reasonable period of time , which for many will be in the seven-to- 10-year range .
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