Law Letter Hub Articles
The Importance of File Notes
1 December 2022
As the Claims Manager for the Professional Indemnity Insurance Scheme, I thought it was a timely reminder to reinforce the importance of preparing file notes as a risk management tool for practitioners. All legal practitioners are broadly aware of the importance of file notes however, the importance of creating a usable trail in the context of managing a professional indemnity claim must not be understated. There is no doubt that the lack of a useable trail, including file notes, will make a professional indemnity claim very difficult to defend.
When a professional indemnity claim is made against a practitioner one of the first steps taken to manage the claim is to call upon a complete copy of the practitioner’s file. I regularly see claims where the poor quality of file notes impact on the defence of the claim. The poor-quality file notes generally fall into the following categories:
- firstly – the legal practitioner has not made a file at note all;
- secondly – the legal practitioner has kept some form of file note, but the contents of the file note are deficient and do not contain the specific details of the clients request for advice and advice given; and
- thirdly – the file notes do not contain basic details as they relate to the contemporaneous nature of the file note taken such as date, time and in a legible form!
Examples of recent claims scenarios where contemporaneous file notes have not been included in files include the following:
- Failure to include a file note that captures instructions provided by the client, on the date those instructions were provided (those instructions were overlooked) resulting in a claim for damages for costs incurred by the client;
- A claim where the file note did not capture the request made by the client for complex advice relevant to the purchase of a property over the phone and the version of events were contested between client and practitioner; and
- A conveyancing claim for breach of retainer where insufficient file notes were kept and not stored well on the practitioner’s file calling in to question the relevant factual events required to defend the claim.
How should file notes be prepared and managed?
There is indeed an art form to producing file notes, with four main components that a good file note should include:
- How it happened – includes the date of the meeting/discussion, time of day and duration;
- Who was present – the names of people attending the meeting/discussion;
- The discussions – record of discussion, substance of advice given, the client’s response to the advice and any instructions given. Written in a legible manner in terms that can be understood by legal practitioners who may assume carriage of the matter in the future; and
- Well executed content of the file note. This will vary depending on the complexity of the issues addressed. The note needs to contain enough information to indicate the relevant content of the discussion to support the practitioner’s recollection if challenged at a future date.
Helpful tips to remember when preparing file notes
- Prepare file notes in real time at the meeting and finalise shortly following to ensure accuracy. This may also include situations where phone calls are taken away from the office and contain important client discussions and information.
- Ensure file notes are prepared in a legible form, minimise the use of abbreviations and write the file note in a way that anyone could understand.
- Write in a way that provides sufficient structure and detail of the discussions and instructions. This can include the plan or steps to move the matter forward ( followed up by writing to the client).
- Utilise available technology to streamline the process this can include the use of converting voice to text or electronic file note templates.
Record Keeping and File Notes
In addition to maintaining quality file notes that are well written, it is important that firms and legal practitioners maintain an adequate client file. Recently, reviews conducted of some files maintained by legal practitioners disclose that they do not have strong systems for managing their files and file notes. This is particularly true where a hybrid electronic and paper- based system exists.
As technology develops and practices move to electronic record keeping there is scope to include electronic templates and electronic filing systems to manage file notes. Dictation software that automatically types the concluded conversation on the phone call or devices that record the meeting and convert to word (with the client’s consent) are certainly viable options. Another option where a meeting is taking place is to have two people attend the meeting so one can focus on taking a good record of what was discussed.
Whatever system is chosen consistency of approach is recommended to ensure that quality control is maintained and contributes not only to quality legal practice but the ability to successfully defend a claim if a claim goes to court.
Fleur Dewhurst
Lawyer
Professional Indemnity Insurance Scheme – Claims Manager
PO Box 79, Lauderdale TAS 7021
0427 800 030
fleurcd@fleurdewhurst.com.au
