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Documenting what you aren’t retained to do can be important too


By Mark Bassingthwaighte

In my experience, too many lawyers appear to be quite comfortable running with an assumption that their client’s understanding of what the scope of representation is 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 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. 

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 that 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. 

Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits, presented over 400 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. He 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