General Practice, Solo & Small Firm Division

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Practice Area Newsletter

American Bar Association - Defending Liberty, Pursuing Justice

SUMMER 2010

Vol. 6, No. 4

PRACTICE MANAGEMENT

 

Tempting Fate: Avoid Emailing Unprotected Draft Documents to Clients

By Todd C. Scott and Wendy Inge

A lawyer was recently asked to construct an antenuptual agreement for a bridegroom. Using the email attachment feature, he sent a draft agreement in MSWord format to his client for review. Soon after receiving the draft, the client declined to pursue the matter, sincerely expressing to his attorney that he no longer had the heart to enter into a premarital contract with his fiancé.

Within three years, the married couple was already contemplating divorce, and that’s when the lawyer became aware that not only had his client used the draft agreement as a final document that was signed by both he and his spouse—a document that the lawyer fully acknowledged was incomplete as to several important provisions at the time the client received the draft—but also the client had decided to “change a few things” by using the word processor’s cut and paste features in the areas of the document that addressed the client’s disclosed assets.

In this era of electronic communication and sending documents by email, clients now have a greater ability than ever before to take partial or incomplete legal documents and make substantial changes to the work product for their personal use. Changes like the ones described above can greatly damage the client’s standing and significantly expose the attorney to a malpractice claim.

Before the era of email and electronic transmissions, sending drafts of documents to clients was much more controlled. The lawyer simply marked the hard copy of the document as a “DRAFT” either with a notation on every page in a watermark, or in a header or footer, or some other similar manner.

The document in its hard copy form was difficult to change on its face, and any edits came back either accompanied by handwritten notes on the original hard copy draft or a photocopy of the draft with changes. The party who drafted the document then made the subsequent changes to the document once both parties agreed to them and circulated another updated draft. The process went on until a final document was reached by both parties. Throughout the negotiation, the party who drafted the original document had complete control over the subsequent printed, hard copy versions and any and all changes that were made, regardless of which party actually suggested the terms.

Electronic transmissions, while immensely faster, are easier to change by either party or anyone else in receipt of them—including your client. Lawyers sending draft documents should be aware that any document sent electronically can be opened and changed with relative ease. So what is a lawyer to do to protect a draft document from being used as a final binding agreement?

You can maintain a level of control over the draft document similar to the type of control lawyers had in the hard copy era with a relatively simple solution. One of the easiest ways to prevent unauthorized use of or changes in draft documents is to publish the document in PDF format before sending it to another party by way of electronic transmission. Software that works within your word processor to convert the document to a PDF is available free of charge from software producers like PDF Maker and CutePDF, and will create a PDF version of your document just as quick as sending it to the printer.

After that, anyone who is determined to cut a paste a few things in a document that has been converted to PDF format would have to resort to expensive OCR software to do the job, or perhaps do it the old fashioned way: with a scissors, glue, and white-out. In short, a PDF can still be manipulated, but it would take great effort and a lot of bad intent.

The following are a few other tips for maintaining further control over what happens to a draft document that is electronically sent from your firm to your client for review:

  • Mark as Draft, Convert to PDF: Any document in production that leaves your office should be marked as “DRAFT” on every page. The “DRAFT” marking can be done with the watermark feature in your word processor, and it can be removed easily at the time the document is finalized only by using the word processor.
  • Skip the Signature Lines: Excluding the signature lines from the PDF draft document works as a deterrent to anyone attempting to use the draft documents as a final product. Someone who is not familiar with a basic legal document may find the lack of signature lines a significant hindrance that prevents them from using the draft document. The lines can always be added later as the document goes into its final form.
  • Include Cover Letter or Email: Always include a transmission letter or
    email that explains to the client that the document is only intended as a draft. This will provide some documentation of the status of the document as a “draft” in the event the client decides to use it without following-up with the lawyer.
  • Review All Documents Carefully for Revisions and Keep Copies of Relevant Drafts: These steps can be critical to tracking the history of a developing document and providing the institutional memory of why various changes were made and items were omitted or added.
  • Agree Ahead of Time: When swapping draft documents electronically and editing them, have an understanding with your client as to the method that will be used to identify any edits or changes to the document.

Saving drafts will require that the firm to develop a reliable system for naming and identifying drafts within their document management system. Both the staff members and the lawyers involved in document production need to understand the system and use it to prevent the possibility of errors (like inadvertently signing the wrong “draft” as a final one). Numerous malpractice claims arising from drafting errors can be traced to poor document management in which the wrong draft or version of a document was mistakenly finalized.

Drafts are particularly important in a malpractice lawsuit because they can trace the progress of the underlying matter. In a contractual negotiation that is prolonged (for example, a property settlement agreement where the parties go back and forth repeatedly), it is important to keep track of not only the final agreement, but also the various drafts that pass between the parties. Without the written drafts, no one will remember exactly what happened months or years later. The drafts become a road map of how the parties reached their final agreement.

Todd C. Scott is VP of Risk Management at Minnesota Lawyers Mutual Insurance Company and blogs regularly about legal malpractice trends at www.attorneysatrisk.com . Wendy Inge is the director of Risk Management Programming at Minnesota Lawyers Mutual and regularly teaches lawyers around the United States about avoiding malpractice and ethics complaints in their law practices.

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