Documentation as a Defense: Protecting Against Legal Malpractice Claims

When an attorney is faced with a legal malpractice claim, good documentation and file maintenance are essential to their defense. A plaintiff bringing a legal malpractice claim must plead and prove four elements:

1. Duty — established by the existence of an attorney-client relationship;
2. Breach — the failure of the attorney to exercise ordinary skill and knowledge;
3. Causation — that the attorney’s negligence was the proximate cause of damage to the plaintiff’s actual loss or harm; and
4. Damages

Depending on the allegations, defenses to a legal malpractice claim may allege that the attorney did not owe a specific duty; that the attorney carried out her duties in accordance with the skill generally employed by practitioners in the legal profession; that the plaintiff’s damages did not result from the attorney’s conduct; or that the plaintiff did not suffer any actual damages. Often, there will be other affirmative defenses as well, such as contributory negligence or the statute of limitations. Good documentation can establish and strengthen each of these.

Regarding the existence of a duty, a carefully drafted engagement agreement that is signed by the client and retained by the attorney will clarify the scope of the representation. Signed engagement agreements can also help to prevent questions from arising later about who is the client. For example, in a recent legal malpractice case where the underlying matter involved a business entity, the malpractice claim questioned whether the business or its principal was the client. The engagement letter and invoices were necessary to establish the client’s identity.

Regarding breach of duty, good documentation and file maintenance is essential for demonstrating the actions an attorney has taken on her clients’ behalf.  When applicable, good timekeeping can be extremely helpful in defending legal malpractice matters, as time entries or bills can be strong evidence that a certain task was completed, especially when the task at issue would not appear on a court docket. For example, in a legal malpractice claim concerning whether the attorney submitted a brief to the court (which was not filed on the docket), the retention of the brief drafts, emails submitting it to the court, and time entries established that the brief was submitted. Best practice is to maintain all records received (such as medical records), memoranda, meeting notes, and drafts, as they can all be valuable evidence of work done on a client’s behalf.

In addition, the importance of maintaining good records of written communication cannot be overstated. The ability to prove that an attorney communicated with her clients, shared necessary information relating to the representation, and provided requested advice is often vital in defending legal malpractice matters. Sending emails or letters, and retaining them in a client’s file, is also key to establishing a strong defense where the allegations concern whether certain advice was given, how it was given, and whether the client understood the advice and its implications for the matter.

Relatedly, an attorney must take necessary steps to preserve evidence of communications.  In particular, this includes ensuring that text messages are backed up or stored, so that they are maintained in case of a change in phone or carrier.   Furthermore, when speaking with a client via phone or video calls, an attorney should document the substance of the communication, particularly if the client is not following her advice.  While a follow-up email to the client is best, a memorandum to the file is also useful.

Documentation of communications with a client can also support other defenses, such as a statute of limitations argument. For example, records of written communications could demonstrate when a client became aware of the facts on which the legal malpractice claim is based.

Furthermore, good documentation of the weaknesses of a case, and the advice given to a client regarding them, can help to support a defense that the client’s loss was not caused by the attorney’s conduct. This is particularly relevant in matters where the loss was ultimately due to circumstances that occurred before the attorney’s representation, such as the failure to respond to a complaint resulting in the entry of a default judgment, or the failure to exhaust administrative remedies against a proper party before bringing suit. Maintaining all file documents related to these issues, as well as communications with the client, will help to present a defense that the loss was due to some factor other than the attorney’s conduct. In addition, maintaining good documentation of advice and recommendations to the client in written communications will help to establish the defense in a situation where a loss was due to a client’s failure to follow the attorney’s advice.

Finally, the plaintiff in a legal malpractice case must prove that she would have recovered a judgment in order to establish damages.  Documentation can demonstrate that the client did not suffer any actual harm; for example, when the underlying case was unwinnable.

Ultimately, the defenses generally available in legal malpractice matters all require good file maintenance and documentation that supports what an attorney has done on a client’s behalf, what advice was given, and any weaknesses or factors adverse to the client’s position. When questions arise years later, the file often becomes the attorney’s most persuasive and reliable witness.

Meet the Author

Megan A. Bershefsky

Associate, Marshall Dennehey

Megan A. Bershefsky is an associate in the Professional Liability Department in Marshall Dennehey’s Philadelphia office. She may be reached at MABershefsky@mdwcg.com.