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Just Because you say it Happened...

When defending a lawyer in legal malpractice cases, there are few things worse than finding out that your lawyer-client has "an empty file." When you ask your client for the file and it contains no pleadings, no emails, no notes, and most importantly, no written correspondence with her client, the defense of that lawyer is going to be particularly difficult.

As a lawyer who defends lawyers, and counsels lawyers on risk management issues, I like to stress the use of written communications with a client, starting with a comprehensive engagement letter and ending with a termination letter. Advice given to a client by email, or verbally with a follow up email reminding the client of the advice that was given, and confirming an action plan, is advice that was actually given and received by a client. Meanwhile, advice that is given in a phone call or at a meeting, without notes and without any follow up communication is often forgotten, or worse changed to the lawyer's disadvantage by the later memory of the client. There is nothing that a defense lawyer likes to see more in a lawyer-client's file than a letter or email to the client advising her of the upcoming deadline, risk, or potential illegal conduct. Those emails are gold when it is the client's word and against the lawyer's word regarding potential lawyer negligence.

But is it always a good idea to make a record of your communications with the client?

Take the recent case of In re Gary R. Novins (2014 NY Slip Op 03465) which addressed a disciplinary complaint. Mr. Novins was hired by a law firm (the Ginarte firm) and assigned to work on a personal injury case against the City of New York and an off-duty cop. The city was served, but the cop was never served. The case proceeded against the city all the way to summary judgment and Mr. Novins and his client lost.

Thereafter, Mr. Novins met with his client and signed a "personal services" agreement with him whereupon Mr. Novins would receive 45 percent of any net recovery that his client received in a proposed legal malpractice claim to be filed against his own employer, the Ginarte firm, for failing to serve the off-duty cop. Mr. Novins agreed to serve as a witness in the case against his firm and the fee would compensate him due to the fact that he would need to leave the employment of his firm. Mr. Novins told his client that he had the notes and documents that would prove malpractice against the Ginarte firm (his employer).

The client then sued the Ginarte firm. After hearing nothing from his former client, Mr. Novins left a number voicemail messages with the client. In one of those messages, he stated that he risked his neck by putting documents back into the file which would aid the malpractice claim. When those messages were not returned, Mr. Novins threatened (again in a voicemail) to destroy the evidence unless the client called him back. The firm discovered the agreement and fired Mr. Novins. Thereafter, Mr. Novins' former client brought the disciplinary case against him, whereupon the voicemail recordings were revealed. After a hearing, Mr. Novins was suspended from the practice of law for one year based upon the written agreement and the recorded phone call messages.

The moral of this story is simple: make a record of your communications with your client if you are a lawyer, but don't do it if you are a criminal.