Yellow legal pads, containing what at least to a casual observer might seem unintelligible scribbles, abound in most lawyers’ offices. Of course, good legal business practice dictates that we take copious and clear notes to identify work we have done or still need to do, who we have spoken with, when and about what. But it is also critical to maintaining compliance with ethics rules.
1. Managing client disputes.
If a client ever comes back to you with a question about advice you have given, your notes should reflect when you spoke to them, what you talked about, and what you told them. Do your scrawls on multiple legal pads fit this description? In all likelihood, no. Clear, detailed notes will give you this information and help you manage any questions that come up from clients.
2. State bar questions.
State bar investigations often focus on whether the attorney fulfilled his duty of competence. Violation of this duty can be alleged in countless ways, all of which are basically second-guessing the work you did. For example, an allegation of failure to act with competence might be that you failed to interview enough or certain witnesses in a case. Detailed notes of every contact, attempt to contact, conversation or correspondence with every witness in a case will help protect you when defending against such allegations. The same is true of legal and factual research performed, strategy analyzed and discussed, or any other aspect of a representation.
3. Detailing contact with non-clients.
In an earlier column, I discussed non-engagement letters. Just as these letters can help protect you from ethics questions involving someone who did not ultimately hire you, so too can good notes. For instance, detailed notes of a contact with a potential client will help you analyze whether you spoke to that person enough and on what matter to conflict you out of a later client engagement. Your notes will be helpful if that person ever comes back and accuses you of misconduct or says you had a client relationship. The notes can even come in handy when following up with them on the business development side if you have added that person to your contacts list.
Setting Up a Practice of Better Lawyer Note-Taking
It is easy to see how good detailed notes can be helpful, but seeing their value does not make it easy to take them. After all, we all know the value of exercise but we aren’t at the gym every day.
If you want to set up a better system for note-taking, try incorporating these tasks into your routine.
- After any client phone call, spend five minutes typing or dictating in prose the thrust of your conversation. Hit the high points, and you’ll already be far ahead of your chicken-scratch notes. If you’re concerned about a relationship with a particular client, you could even send these notes to them in an email.
- When keeping a conflicts database, include a “notes” field where you can add details of what you discussed with any potential client. Make it an unlimited text field so you are not forced (or tempted) to put in just a few words. If you’re using a program from which you print and this particular field is long and unwieldy, set your software not to print this field. Remember, the information is not for frequent use but will be helpful at certain specific times in the future. It does not need to be at your fingertips at all times.
- Use voice-to-text transcription technology. Your phone probably has the capability already. If you are out of the office when you have a call with a client, chat yourself up on your phone and dictate a note to include in the client’s file.
- Maintain an electronic notes file for each client. Every electronic client file should have some of the same basic folders and documents, including a folder for all correspondence. In that folder, create a file for every client called “Notes.” Supplement handwritten notes with your electronically maintained detailed summaries of your notes. Electronic documents are faster and easier to create, and thus more likely to be created than lengthy handwritten notes.
Once They’re Written, Maintain Them
No matter how useful your notes may be, they are rendered wholly useless if you lose them. We have all had that feeling of panic when you know you spoke to someone, and you must have written it down, but you cannot locate that random piece of paper (or napkin?) anywhere. Whatever the system you use to maintain your notes — whether on a single legal pad for each client, or by tearing off your notes and putting them in a folder, or scanning them into your computer — make sure that you file those notes away every time.
If you no longer have your notes when they’re needed, you may as well have never written them at all.