The gap between the rule and the proof
Conduct rules impose duties. They rarely specify how compliance is to be evidenced. That distinction is invisible day to day and decisive in a complaint.
When a complaint reaches a legal services commissioner or a disciplinary tribunal, the question is not whether you followed the rule. It is whether you can show that you did. A practitioner who acted entirely properly but kept no record is in a materially worse position than one who acted the same way and wrote it down. The rule was satisfied in both cases; only one can prove it.
This is the same dynamic described in legal file note requirements in Australia, applied specifically to conduct obligations rather than evidence in civil proceedings.
Where file notes carry the evidential weight
These are the recurring areas where a file note is the practical proof of compliance.
Acting on instructions
A solicitor must act in accordance with the client's lawful, proper and competent instructions. Where a dispute arises about whether you were instructed to do something, or instructed not to, the file note of the conversation is the record. Email is better where it exists, but a great deal of instruction is given by phone, and phone instructions are the ones most often contested.
Anything requiring informed consent
Several rules turn on informed consent, most prominently in relation to conflicts. Informed consent has two limbs: the client must have been given sufficient information, and the client must have agreed. A note that records only the agreement fails on the first limb. The note needs to show what the client was actually told before they consented.
Conflicts of interest and former clients
Where a conflict is identified and managed rather than declined, the reasoning and the client communications are the record of how it was handled. A file note showing the conflict was identified, the client was informed, and consent was obtained on that basis is the difference between a defensible position and an assertion.
Costs disclosure and updates
Costs obligations arise under legal profession legislation as well as the conduct rules. Initial disclosure is usually documented properly. The failure point is the ongoing obligation to update the client when the estimate changes materially, because those conversations happen by phone. See costs disclosure and file notes.
Supervision of junior practitioners
Where a principal is responsible for the supervision of employees, the file is the evidence of what supervision actually occurred. Notes made by a junior practitioner and reviewed by the supervisor demonstrate the chain in a way that recollection cannot.
Communications with the other side and unrepresented parties
Rules governing dealings with other practitioners and with unrepresented persons are frequently the subject of complaint. A note of what was said in a call with an unrepresented party, made at the time, is the practitioner's protection against a later characterisation of that conversation.
What a note needs to contain to actually help
| Weak note | Note that discharges the obligation |
|---|---|
| Attendance on client re settlement. | Advised client offer of $X was within the likely range, explained the two alternatives and the costs risk of proceeding. Client said she understood and instructed me to accept. |
| Conflict discussed, client consented. | Explained that the firm previously acted for Y in an unrelated matter, what that could mean for this retainer, and that she could take independent advice. Client confirmed she understood and consented to us continuing. |
| Costs update given. | Told client the revised estimate is $X, up from $Y, because of the additional interlocutory application. Explained the option of not proceeding with it. Client instructed me to proceed. |
| Call with unrepresented party. | Spoke to Mr Z, who is unrepresented. Told him I act for the applicant, that I cannot give him legal advice, and that he should obtain his own. Recorded what he said about service. |
The pattern is consistent. The weak version records that a topic was covered. The useful version records what was actually said. The second takes barely longer to write and is the only one that helps.
Making it routine rather than exceptional
The obligations above are not controversial and no practitioner disputes them. The difficulty is that the notes which matter most tend to follow the calls that are longest, hardest, and most likely to run into the next appointment. The note that would have discharged the obligation is the one there was no time to write.
CallNote addresses that by generating the note from the transcript your phone or meeting system already produces. It never records the call and never joins it. The solicitor reviews the generated note, corrects it, and lodges it, at which point it is timestamped and cryptographically sealed, with later changes recorded as dated amendments rather than silent edits.
For conduct purposes the sealing matters as much as the content. A note whose creation date cannot be challenged removes an argument before it starts. The for law firms page covers the audit trail in detail, and the file note compliance checklist is a free way to review what your current notes actually contain.
Common questions
Do the conduct rules actually require file notes?
Not in those words. No rule states that solicitors must keep file notes. But several rules impose obligations that are effectively impossible to demonstrate without a contemporaneous record, particularly acting on instructions, obtaining informed consent, managing conflicts, and updating costs estimates. The rule is the duty; the note is how you prove you met it.
What is the difference between a note that records consent and one that records informed consent?
Informed consent has two limbs: sufficient information was given, and the client agreed. A note saying "client consented" evidences only the second. A note that records what the client was told before they agreed evidences both. In a disciplinary context the first limb is usually the one in issue.
Are file notes relevant to disciplinary proceedings or only to civil claims?
Both, and the disciplinary context is often the more immediate risk. Complaints to a legal services commissioner frequently turn on what a client says they were told against what the practitioner says was advised. The contemporaneous note is the practitioner's primary evidence in exactly the same way it is in a civil dispute.
Does a note written by a paralegal satisfy the obligation?
A note made by someone else who was present, and reviewed by the responsible solicitor, can be perfectly good evidence. The risks are that a person who did not give the advice may not capture it accurately, and that the review step is what makes the note the solicitor's own. Unreviewed notes made by a person who was not on the call are considerably weaker.
How soon after a call should the note be made?
As close to the conversation as practicable. Contemporaneity is what gives a note its weight, and a note made the same day is materially stronger than one made a fortnight later. If you are writing late, date the note accurately for when it was written rather than backdating it, because an apparently backdated note causes more damage than a late one.