It is vital that every agency staff member, regardless of your position, to realize that in the event of an E&O claim, your ENTIRE agency file will be discoverable and admissible. This means that both the attorney assigned by the E&O carrier to defend your agency and the plaintiff attorney (hired by the person or organization suing your agency) will have the right to that file. Thus every agency note, every e-mail sent pertaining to that account will be available and you can count on those documents being reviewed.
In regards to the rules pertaining to file documentation and e-mail content, one of the BIG rules deals with professionalism. From time to time, there is no doubt that conversations with customers can probably get a little emotional. When documenting these conversations in the system, make sure that the emotion, the heat of the moment, does not come shining through. For example, if you were to enter in the system, “spoke with Curt regarding his homeowners insurance – what a jerk he is”, this file note would no doubt be reviewed by the various attorneys and potentially used against you and your agency in any E&O litigation.
In addition, agency staff should be careful with comments that they may enter in the system or use in an e-mail that would paint them in a somewhat negative light. This could involve an admission of a lack of understanding of a particular issue or a misstatement of how a specific coverage would perform. For example, if you were to indicate that “I am really not sure how co-insurance works” and a problem developed down the road involving co-insurance, this type of statement could be potentially very damaging. It would be argued that if the agency staff member did not understand co-insurance, what are the chances that a customer would understand it?
Bottom line, when entering notes in the system or communicating with customers or carriers, be very careful. Reread your comments and make sure that you feel comfortable with what you have typed before officially (and permanently) making your comments part of the file. After a problem develops, it will then be too late to change it.