"No file and no system is litigation-proof, because you don't have to be lying, cheating or stealing to be sued," according to Jim Ruta. "Somebody only has to want to go after you. But you can be litigation-resistant."
Ruta, the well-known financial industry advisor, speaker, media commentator, author and writer who is also a Managing Partner of InforcePRO Software, knows a thing or two about the need for advisors to keep and maintain a good paper trail in their dealings with clients. He is a big advocate of doing just that, and can frequently be found teaching agents how to build strong client files that keep the litigators away, including his friend and colleague, Ontario-based lawyer Harold Geller, who sues advisors for failing to do their jobs properly but also defends advisors who are doing it right.
Geller is constantly preaching that as an advisor you need to "show your work" by having sufficient documentation in your client file to prove the logic behind make the recommendations you made, Ruta said. "And that's really all there is to it. Empty files make Harold rich," he said.
This is not just something that happens to other advisors – it can happen to you, and you might not see it coming. "Many advisors think, 'Well, my clients wouldn't sue me.' Well, yeah, you're right. Your clients won't sue you. It'll be their attorney and their kids who will be fighting over their estate. That's who will sue you. And they don't care about the relationship you had. If you don't have it documented, and you can't demonstrate that you have it documented, you're going to be doing an awful lot of sweating," Ruta said.
To Ruta, this subject is a very big deal. And he says it's not only an ethical issue—it's a practical one as well. He said he's always noticed a reticence on the part of advisors to do much paperwork. "Despite the financial planning focus of the industry, they talk about us being financial planners and financial advisors, we really have a sales culture which means all of the work we do really lines up toward our getting the sale done. Lengthy paperwork doesn't usually help sell anything."
While advisors who are great salespeople are seldom also great note-takers, Ruta said you still need to have a paper trail. Good communication is good compliance, and good compliance demonstrates a high degree of professionalism.
Suppose a deceased client's children decide to sue because the client only had a $250,000 death benefit when a $1 million death benefit would have been more appropriate for his situation. If you have it documented in your client file that the client was presented with such an option but flatly declined, the children have no case.
"That stuff saves you every time," Ruta said, adding that his lawyer friend always asks for the agent's client file during a lawsuit. "If it's four inches thick and costs $65 to courier, he looks at it and thinks, 'I've got nothing.'"
