Recent developments in the news have caused me to reflect on this topic. When should a lawyer make a memo to the file?
There are news stories that former FBI Director James Comey made memos to the file to report on conversations he had with President Trump. Comey made the memos because he was concerned that Trump was asking him to violate the law or engage in some form of corrupt activity. Comey would have been very concerned that he would later be accused of engaging in some impropriety or that Trump would make some claim about their meeting that would contradict Comey’s recollection. Comey is also smart enough to know that he needed to keep a copy of the memo to the file in his own personal papers so that no neer-do-well could destroy it after he was terminated.
A memo to the file should be made (and preserved in a way that proves when it was created) whenever the client (a) indicates that he may not follow legal advice; (b) he announces an intention to violate the law; or (c) he does not appear to be telling the truth.
The memo to the file can be invaluable to the lawyer if the client later makes a claim that the lawyer gave bad advice or that the lawyer did not inform the client of some important development.
The memo to the file is also useful where a confirming letter to the client would not be effective because the client does not pay attention to written correspondence.
In sum, the memo to file is used to protect the lawyer where the client may be heading off the rails in some form or fashion or where the client will later blame the lawyer for some event that took place.
Edward X. Clinton, Jr.