Confirm instructions in writing
Making notes of conversations with clients and sending letters to clients to confirm their instructions is a wise practice and may be the only defence against a “he said, she said” situation. Skipping these steps on a file can lead to unhappy consequences, impairing your ability to respond to complaints or claims of negligence.
The Law Society often sees problems arising from miscommunications or misunderstandings between lawyers and their clients, such as what steps the lawyer will or will not take next on the client's file.
In one case before the Complainant’s Review Committee last year a client complained to the Law Society that his lawyer had agreed to dismiss the client’s personal injury action by consent, but the client denied having given instructions to do this.
In that case ICBC had filed an application under the Workers Compensation Act to dismiss the client’s action after WCB had determined that the client was working at the time of the accident. It was clear on the file that the personal injury claim could not proceed and that the dismissal was appropriate. The lawyer said that he had discussed the matter at length with the client and obtained consent to the dismissal.
The lawyer, however, had not made notes of his instructions from the client, did not send a letter to the client confirming the instructions, did not copy the client with his letter to defence counsel agreeing to the dismissal and did not send the client a copy of the dismissal order. In the view of the Complainant’s Review Committee, the lawyer may have been able to avoid the complaint altogether had he confirmed instructions in writing.
Accordingly, in terms of “best practices,” it is recommended that lawyers send copies of all correspondence (both incoming and outgoing) to their clients as well as written summaries of instructions received orally from clients. In this way there is a clear written record of the steps that the lawyer is (or is not) to take on the client's behalf.