Imagine a scenario where a former client sues a lawyer for legal malpractice, alleging that the lawyer failed to properly advise the client as to the risks of a certain proposed action. The lawyer remembers things differently, recalling that they sat the client down and spoke to them at length about those risks. But if the lawyer never wrote down those risks for the client, it can be hard to prove after the fact exactly what happened and what the client was told.

Most lawyers appreciate that, in the ideal scenario, key events and discussions relevant to an attorney-client representation would be reduced to a writing. These can include an assessment of likelihood of success, a confirming email to opposing counsel regarding the agreed terms of a stipulation, or the transcript of a judge's oral ruling read from the bench.

Sometimes, though, attorneys may let that habit slide, particularly when it comes to communications with the client or documenting the attorney's thought process. Lawyers are busy and it may not be practical to reduce everything to a writing.

Here are some tips on deciding when to write things down and how to use writings to help manage risk.

What to record

In a time where technology advancements promote efficiency and speed in the practice of law, attorneys may feel like they are too busy to document every single development, telephone discussion, or recommendation made in the course of a representation. Not documenting an important strategic decision, however, can be risky; it could even expose attorneys to a malpractice suit, or lead attorneys to be unable to defend themselves properly in the event of such a suit. Thus, attorneys can attempt to plan ahead. Give some thought to which decisions or recommendations are best suited for writing down either in the file or in a communication to the client.

The typical client file should include documentation of important strategic analyses and considerations, recommendations, and client decisions, where appropriate, just as it would maintain filings, court documents, and party communications. Decisions like which witnesses should be deposed or saved for trial, or whether or not to file a discovery motion, are all fairly routine. But because they often involve a mix of attorney analysis and recommendation, with client approval, they may be important to document for the file.

Consider memorializing decisions that, if called to prove what happened years after the case has ended, would be difficult to prove absent an additional writing. For example, memoranda of research used to determine a strategic move in the case can include not only the final recommendation, but also an analysis rejecting other courses of action. Sometimes, brief discussions take place during crucial events--such as during mediation negotiations or outside the courtroom during a court recess. Attorneys can strive to document these conversations similarly to how they document key events. There is no one-size-fits-all solution, though. Attorneys should work to consider what might be best for each case and each set of circumstances.

Similarly, the ways to document these decisions can vary. For example, if an attorney is making a recommendation regarding a particular course of action (such as the potential filing of a lawsuit), the attorney may consider preparing a client memorandum outlining the pros and cons of the recommended course of action. Other decisions, such as when strategically to proceed with specific tasks, may be documented in a quick email to a client after a discussion. This is consistent with lawyers' ethical obligations to keep clients reasonably informed about significant developments relating to the representation. See California Rules of Professional Conduct Rule 1.4.

Client communications do not need to be harsh or critical in tone. Some attorneys may even avoid sending their recommendations (or documenting a client's decision) because they are concerned it can look defensive to a client. Try to write these communications in a neutral tone to summarize what took place and what was said, without suggesting a later dispute between attorney and client is expected. Such writings are not only critical in the event of a legal malpractice claim but can be helpful for a multitude of reasons, such as if another attorney is coming on to the matter, or if a matter has been dormant for a while (and the attorney needs a refresher on the status of the case or the decisions already made).

Judgmental immunity

The judgmental immunity doctrine can be valuable in defending legal malpractice claims. In California, the doctrine can serve to immunize attorneys from liability that results from an "honest error in judgment concerning a doubtful or debatable point of law." Village Nurseries, L.P. v. Greenbaum, 101 Cal. App. 4th 26, 36 (Cal. App. 2002) (internal citation omitted). The inquiry into whether the judgmental immunity defense will apply involves whether (a) the law was unsettled when the advice was rendered; and (b) whether the advice was based on the exercise of informed judgment. Id. at 37.

Relying on the judgmental immunity doctrine to protect a lawyer's reasonable exercise of judgment is consistent with the idea that reasonable lawyers can disagree on the "best" course of action for a representation. This doctrine also supports the concept that the application of hindsight to an attorney's decision is not enough to establish liability.

It may be easier to prove an attorney's reasonable exercise of judgment on a matter of unsettled law if that decision-making (and underlying factors and bases for such decision-making) is memorialized. A subsequent legal malpractice case may review whether the attorney's professional judgment was reasonable by weighing the attorney's experience, the research conducted to support the position taken, and other factors. Having the attorney's thought process in writing supports the conclusion that the attorney's judgment was reasonably exercised, with consideration of relevant facts and law, in support of a claim of immunity.

Manage client expectations

Recording work product or discussions held during a case can assist in managing client expectations. Sometimes, issues arise when the client has second thoughts at the end of the representation regarding the outcome. If a matter does not end the way a client was hoping it would, the client may later argue that they did not really understand the risks of a certain course of action, even if those decisions were made with client consultation or input. These second thoughts can lead to the filing of a malpractice suit against the attorney if the client thinks the matter should have been handled differently.

Candid client discussions through the duration of the case can define what a "win" might look like, what the client's goals are for the representation, and what the realistic potential outcomes are given the facts of the case. People's memories of a specific conversation can differ long after an occurrence. Thus, if certain decisions, assessments, or risks are not documented in the file, it can be difficult to prove what happened later. Indeed, in a malpractice suit, a jury may even draw an adverse conclusion based on the lawyer's failure to write down their advice or their decision-making: if it's not in writing, did it even happen?

Memorializing important decisions in writing can help inform clients regarding the scope of the representation, the services being performed, and what the inherent risks are. Reducing key discussions and strategy to writing may also help those attorney decisions stand up to potential scrutiny in a subsequent legal malpractice case.