At Lawyers Mutual, we often emphasize the importance of having a well-drafted engagement agreement signed by your clients. By putting the scope of your representation on paper and having the client acknowledge the scope, you eliminate many claims that might otherwise be made against you relating to the scope of your duties. The importance of a written record does not end with the engagement agreement. After you are hired, confirming conversations in writing can safeguard you down the road when differences arise. This practice becomes especially critical when handling difficult clients or encountering unusual requests that could potentially lead to misunderstandings or disputes.

Written confirmation ensures that all parties involved have a clear understanding of the discussions and agreements reached in an oral conversation. It eliminates ambiguities that oral conversations may leave open to interpretation. For example, if a lawyer meets with a client to discuss case strategy, a written confirmation helps to insure that client is on the same page for how to proceed.

In the event of disputes or misunderstandings with a client, written confirmations often serve as a simple way to resolve the dispute or misunderstanding. These written records can also serve as evidence in a legal malpractice claim in the future.

Clarifying details in writing also helps to manage client expectations effectively. It ensures that everyone is aligned regarding the scope of representation, fees, deadlines, and any other pertinent aspects of the legal relationship.

Written confirmations of oral conversations are not only important to protect the lawyer, but they also help the client to understand what is happening in the representation. Clients often don’t understand what a lawyer says in a telephone conversation or meeting. They need the time to be able to sit down and review a written recitation of what was said in the telephone call or meeting. 

Not all conversations need to be confirmed in writing. Too much can make the client uncomfortable and can result in unnecessary fees.  However, when important aspects like strategy and goals are discussed, these discussions should be confirmed. It is somewhat of a judgment call on how much to confirm. And how much to confirm will often depend on the client. As a rule of thumb, when you have a difficult client or are concerned that the client might end up complaining about your services, you will want to confirm more of your conversations with those clients.

One area where you will always want to confirm in writing is where a client asks you to do something unusual in your representation. For example, if you are a family law attorney and your client tells you that he does not want to ask for what he is entitled to by law, you will want to confirm that in an email or letter to the client. If an estate planning client tells you that she does not want to take advantage of obvious tax-saving strategies, you should confirm that in writing as well. When you confirm these things, be sure to explain in detail to the client what they are foregoing or agreeing to that is different from what you have recommended.

Every year, we settle claims against lawyers that could have easily been avoided if the lawyer had confirmed an arrangement, strategy, or understanding in writing. In the absence of a written record, it simply becomes a he said, she said situation for a jury. In addition to protecting lawyers from unnecessary claims and ethics complaints, confirming conversations in writing can also serve to benefit clients and improve client relationships.