A timely reminder of the importance of attendance notes

We’ve all had times when things don’t go the way we want them to, and client outcomes are not has hoped for.

In litigation, the ultimate decision is usually not within our direct control. And then clients complain because they haven’t got the result they wanted, promptly blaming their solicitors, maybe bringing a negligence claim, and it gets messy. After all, aren’t solicitors supposed to achieve the impossible? Emotion takes over, not reason; sleepless nights ensue, and you wonder ‘did I really get this so badly wrong?’

A case in point: R v Lucy Connolly

This is exactly what happened in the recent and high-profile case of R v Lucy Connolly, in which Mrs Connolly lost her appeal against sentence. Following a post on X/formerly Twitter, she was prosecuted for (and pleaded guilty to) stirring up racial hatred in July of 2024, following the shocking attack at a dance class in Southport. Appealing her sentence of 31 months’ imprisonment in the October of that year, she argued that solicitor-advocate Liam Muir had failed to advise appropriately and had failed to advance her case properly. I can only summarise complex evidence here:

• She stated that she was aware of the terms of the charge.
• She accepted that her tweet was wrong but claimed that she told Mr Muir that she never intended to stir up racial hatred.
• She claimed that there was no discussion of whether she intended to incite serious violence.
• She denied that Mr Muir had shown her the sentencing guidelines or explained them, claiming that she did not know about either the guideline or the starting point until the Judge mentioned them in his sentencing remarks.
• She said that she didn’t know what ‘category A1′ meant, it was not explained to her: it was ‘just a number and a letter.’ She then criticised Mr Muir’s advice on a disputed basis of a guilty plea.

Her new counsel threw the kitchen sink at her previous legal advice.

He said, she said…why attendance notes matter

Unusually, the Court of Appeal heard oral evidence. Further, Mrs Connelly waived her legal professional privilege, enabling Mr Muir to respond to this trenchant criticism. Flatly contradicting Mrs Connelly’s claims, Mr Muir stated he had discussed the sentencing guideline with her and confirmed that she still wished to plead guilty and not to advance any basis of plea. He said that she had had time to consider her position, and it would have been wrong for him not to check whether she had changed her mind. He stated that he showed her the sentencing notes, saying that he always did so with his clients, for two reasons: first, because it was the right thing to do; and secondly, because the client would hear about those notes in court, and he needed to know whether there would be any dispute about any of the contents.

Following all this, Mrs Connelly had signed a note drafted by Mr Muir to the effect that she did not wish to enter a basis of plea (which meant that she was admitting incitement to violence) adding ‘I know therefore that this would be a category 1A offence with a starting point of 3 years’ imprisonment.’

Preferring Mr Muir’s evidence, the Court rejected Mrs Connolly’s claims. The Law Society’s Gazette article focuses on how the Court found Mr Muir to be a conscientious criminal defence solicitor. But more than that (which the Gazette doesn’t mention) Mr Muir kept notes of his advice. They contained a few technical errors, which Mrs Connolly criticised: but at paragraph 59 of the judgement the Court stated ‘The contemporaneous records which [Mr Muir] made of his conferences with the applicant support his evidence, and the semantic criticisms made of the attendance notes carry no weight.’

The Court continued (at paragraph 60) ‘Her acceptance that she read and was content with Mr Muir’s sentencing note, which includes references to the sentencing guideline and to the aggravating feature specifically mentioned in the guideline, clearly shows that she was well aware of what she was admitting.’

A matter of record; better done than perfect

So, what’s the takeaway here? Making an attendance note is very helpful; it mightn’t be perfect, but it will go a long way to defeating a complaint or a claim. Similarly, where (as here) the outcome is likely to be severe, asking a client to verify that they understand the option that they have chosen is likely to be of considerable evidential value.

Naturally, when clients are upset memory becomes selective: a detailed note is essential. This is just one aspect of rule 4 of the SRA’s Code of Conduct for Firms: ‘You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf… You ensure that the service you provide to clients is competent and delivered in a timely manner, and takes account of your client’s attributes, needs and circumstances.’

Whilst section 4 doesn’t specifically address attendance notes, it should be a best practice and instinctive process that speaks to the spirit of the Code, protecting the best interests of your client, and of yourself.