The attendance note

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"Never put it in writing." So said a magistrate I once knew, a man who found himself perennially amazed at the documentary trails of guilt laid before him. Defendants of all hues would incriminate themselves with notes, diaries and letters, a problem compounded in today’s world by email and text messaging. Everywhere we go — as John Prescott is the latest to find — there is a written record, waiting to wield its Damocleian scythe. Much better, according to the sage advice of my magistrate friend, never to commit pen to paper.

But for lawyers, there is an obligation to do just that. Or, at least, if one is moderately contemporary, to create a record of events. I refer, of course, to the ubiquitous attendance note. This innocuous little document, with its quaint legalistic non-speak and inherent avoidance of any hint of the underlying emotion surrounding an event, serves as much more than a mere aide memoir. The attendance note’s curious function, and its potential for misuse, was all too obvious to me early in my career, when I worked with a lawyer whose blood ran rather too red for the decorum of his office.

To say that my erstwhile colleague loathed his job would be an understatement. Its unrelenting protocol sat uneasily with his carefree eye for the ladies. However, by way of sublimating this uneasy tension, he used the attendance note as a means of catharsis. His records of meetings and phone calls became hostages to fortune rather than objective accounts of the facts, so much so that he is, now, no longer a lawyer. One can only imagine how he would have crafted an attendance note, had someone like Tracey Temple sought his advice.

"To attending on Client X in the matter of her diary and its secrets. X suggested that the time had come for her to sell her story. She felt that its value would diminish were she to leave the matter for very much longer. X was convinced that Minister Z was a bungling fool who would not be in office for more than another month. Once he was gone, her account of tumultuous passion with him would be of marginal interest and lower financial value. Advising X that she was right about the likely value of the story in the event that Z were to be sacked and/or resign, but that she should exercise caution. After all, the government had demonstrated a knack for preserving the careers of men such as Z."

X is not, of course, Ms Temple. Nor is Z the Deputy Prime Minister. But let us conjecture how the bright young thing’s attendance note would have continued: "X reluctantly agreeing. X asking if we might meet for dinner. Her voice was at once breathless and seductive. After some time, agreeing to meet X for dinner. Time engaged: three hours."

The last four words are crucial. Lawyers craft attendance notes in order to prove that they really did have the conversations they say they had. They help them deal with the dread claim for negligence, because they can say "Look! It really happened! I refer you to my attendance note!" The humble attendance note also helps them beef up their bills. It is one thing to spend time talking to the likes of Ms X, and quite another to create a contemporaneous record of such a conversation, as protocol demands. In other words: in for a penny, in for a pound.

There are, no doubt, occasions when a written record is created for none but the purest of motives, for example so that a clear account exists of advice that the client may not wish to take. Often, though, the obligation to note everything "for the file" arises both out of a fear of being sued for negligence and because the extra work entailed means more fees. A chalice that is not altogether poisoned, you might say. As our hero’s own file in the matter of X’s diaries reveals, however, lawyers are not averse to the occasional attendance note that strays beyond the minimalist confines of the genre.

"Attending X at the Oxo Tower for dinner. She looked fantastic. What was she thinking of, cavorting with that fat fool Z? X expressing relief that Z had weathered the storm and, indeed, been promoted. X asking how she could ever thank me. Thinking ‘take me away from the law’ but advising X that my fee note would be with her soon and that its prompt payment would be most pleasant. X saying she had always found lawyers more attractive than film stars, footballers and even government ministers. Thanking X for her compliments and responding in kind. Hoping that no one ever reads this note. Time engaged: all night."