[REQUEST] How to protect yourself when a client denies your recommendation

[MicroByte Enterprise]

I want to have a document that covers me if I suggest a product or procedure for a client and they deny the recommendation.
If they don't follow my recommendation and something negative happens, my E&O provider says I need to cover myself. I'm envisioning something like a medical consent form.
Does anyone have something they would suggest?

 

[britechguy]

Literally something with your letterhead that gives your list of recommendations with, if necessary, an accepted/declined checkbox for the line items at the level of granularity that's appropriate for the job.

End is client signature line and date along with the same for you or your company's representative with that client.

That's kind of medical informed consent like. For myself, depending on the nature of what you're doing, I'd be a lot more concerned with having documentation of what they decline, versus what they accept, and that you have reviewed it.

But, it is difficult, with certain exceptions, for you to have liability for what you did not do unless what you did not do would amount to malpractice (which is not just medical) in the context of the job. For example, you can't be held liable for not installing antivirus when the job was basic setup of a computer and printer with no software installation or other "on machine" tasks requested. Jobs have a scope and that scope is the direct result of what the client asks you to do. Stay focused on the parameters of the job at hand.

After saying the above, always be prepared to do write-ins when on the job, and have those initialed for accept/decline as well. Clients constantly come up with "by the way, since you're here" items when you're on site that they never mentioned prior to your arrival.

 

[Porthos]

Is this a business client or a residential client?

 

[Joep]

I want to have a document that covers me if I suggest a product or procedure for a client and they deny the recommendation.
If they don't follow my recommendation and something negative happens, my E&O provider says I need to cover myself. I'm envisioning something like a medical consent form.
Does anyone have something they would suggest?

If client is going to tell me how I do a job, he can take his business elsewhere.

 

[Markverhyden]

That's what work orders, invoices, check lists, and ticketing systems for. Don't forget emails and texts

my E&O provider says I need to cover myself.

That's their lawyers talking. More or less. I've never seen or heard of needing to sign a document acknowledging if refused something that was recommended to me by someone else.. If there were such a thing I'd have a garage full. There's a difference between must have vs nice to have.

 

[britechguy]

The only time I've ever documented refusals is when said refusals have a very, very high probability of causing the proverbial house to burn down AND what I've been asked to do is set things up that are supposed to be avoided that as part of the job.

As a simple (and somewhat contrived) example, if someone were asking me to set up WiFi networking for their small office, but insisted that they did not want a password, but an open network, I would be documenting that fact. I'd have counseled them that this is an insane choice (in more businesslike terms) but, in the end, if they refuse, the possible outcomes from that choice are their responsibility, not mine. I'd want to have that sort of lunacy on the part of the client documented.

This sort of thing very, very seldom occurs.

 

[nlinecomputers]

This is just me. But if you are really in a position where your client is turning down a best practice and you honestly think they will sue you when the feces hits the spinning blades, that’s a client you fire. Seriously if your client is that willing to turn on you no document will save you. People can sue for anything and signed disclaimers while greatly enhancing your defense doesn’t prevent the need and expenses of said defense. Good insurance is what protects you from litigation not disclaimers nor waivers. And if you require said paperwork talk to your insurance provider and get what they want.

 

[britechguy]

you honestly think they will sue you when the feces hits the spinning blades, that’s a client you fire.

I absolutely agree, but often that firing is the direct result of a situation like the ones described where you are already involved not exactly of your own free will. There are times where one takes a job expecting that professional advice will be taken without question, but it doesn't turn out that way.

You sometimes only get to fire a client like this after at least one proverbial horse is already out of the barn. It pays to CYA if and when this does happen. God willing it won't happen often, or at all if you have sane clients.

 

[nlinecomputers]

Failure to heed the advice of an expert is not really something you can really expect to be sued for and lose. The negligence is on the end user for failure to adopt the recommendations.

I’m only at fault if my recommendation turns out to be inappropriate, inaccurate, whatever. If I tell you that gasoline is a great fire retardant and you coat your house with it then I can be sued for providing inaccurate information. I.E. malpractice.

 

[nlinecomputers]

You can only be sued for those things you are directly responsible for. If client X pays you to do backups and you fail to do so then you can be sued for breach of contract and perhaps even the loss of value for the data you were supposed to be responsible for. If the client was required to have backups for insurance or industry compliance and turned down your quote that’s on them. Their insurance or compliance organization is making the requirements. They don’t apply to you.

 

[britechguy]

Failure to heed the advice of an expert is not really something you can really expect to be sued for and lose.

Indeed. But, as you also stated, equally correctly: "People can sue for anything and signed disclaimers while greatly enhancing your defense doesn’t prevent the need and expenses of said defense."

These two things are not mutually exclusive, and America long ago became the land of the frivolous lawsuit that somehow doesn't get thrown out of court.

Up until about 2 years ago I never, ever used a service agreement and liability waiver, now I do (but not always, only when the task seems, to me, to involve some possible exposure on my end. Replacing a pop-out battery doesn't, replacing a screen where I have to tear down the machine does). I really don't expect to be sued, if I'm honest, but that piece of paper also ensures that I have gone through my "checklist of stuff the client really needs to know" when I think they need to know it. The recent Dell screen replacement while the machine was under warranty was one such case. One of the bits in my service agreement is a statement that allowing me to touch the machine while it is under warranty has the potential to void said warranty and the client initials that and signs at the end of everything.

 

[britechguy]

You can only be sued for those things you are directly responsible for.

Sadly, this is not true. At this point I think we'd both be in agreement on that from very recent exchanges and reactions on this very topic.

Whether the person suing can win is an entirely separate issue. But the statement, and not just about our work, "You can be sued for anything," has sadly come to pass a long while ago. Even if said suit is entirely frivolous and gets tossed at the first go-round, you will still have to have engaged legal counsel if only for that.

It is profoundly sad to me that the "validity filtering" mechanisms for lawsuits, which used to occur very early in the filing process, seem to have vanished almost entirely. I sometimes wonder if the phrase "frivolous lawsuit" can even be said to be applicable in the court vetting process anymore. Most go further than they should before they meet their justly deserved tossing.

 

[nlinecomputers]

Sadly, this is not true. At this point I think we'd both be in agreement on that from very recent exchanges and reactions on this very topic.

Whether the person suing can win is an entirely separate issue. But the statement, and not just about our work, "You can be sued for anything," has sadly come to pass a long while ago. Even if said suit is entirely frivolous and gets tossed at the first go-round, you will still have to have engaged legal counsel if only for that.

It is profoundly sad to me that the "validity filtering" mechanisms for lawsuits, which used to occur very early in the filing process, seem to have vanished almost entirely. I sometimes wonder if the phrase "frivolous lawsuit" can even be said to be applicable in the court vetting process anymore. Most go further than they should before they meet their justly deserved tossing.

Only to a point. Lawsuit against IT professionals for "malpractice" are quite rare. Because for the most part there's not a whole lot of guesswork or unknown variables in computer industry. Worse come to worse you can always replace everything and get reasonably back to where you were. Courts and insurance companies know this and so most threats don't get beyond that. Again the onus of protecting yourself falls on you. If you fail to act the courts will quickly move in the IT providers favor. The real risk for IT is when you ARE tasked for providing a service and some catastrophe or act of malice ruins it. If we fail to plan for a contingency that we should have seen.

 

[callthatgirl]

I have a client agreement form and there are many check boxes. About 50% of my client check this box "My data is backed up" so I have something on record. I recommend having having something like a form, even if it's a 365 form they have to sign off on.

 

[YeOldeStonecat]

We really just do B2B (business clients)....no residential.
We focus on "MSP clients"....that is, clients that are on one of our 3x levels of monthly plans. We still have a few "break/fix" biz clients, but we're chipping away at that.

*I keep emails where I propose something to the client, if they reply back.
*When we sign clients up for one of our 3x managed plans, we have contracts. Those contracts clearly bullet point important things for us. *Approved computers only (basically...business grade computers that we approve of, no 1x year/residential grade computers on our plans
*One of our backups, nothing else. Pretty easy for clients to understand, we want to have things backing up into the systems we manage and monitor, and backup services that we're trained in, and that we have support it. I'm not going to sweat bullets trying to revive a clients dead server on some freeware crap or symantsuck crap.
*Our antivirus, nothing else. Just an AV product in our management portal that we manage, we monitor, ties in with our RMM, and that we have support for.

If clients don't want that, we're not a good fit for one another.

 

[britechguy]

About 50% of my client check this box "My data is backed up" so I have something on record.

Same here, but mine is not a "my data is backed up," per se, but says that it is the client's responsibility to back up their data prior to handing their machine over for service and that I (the company, but since I'm the company) is not liable for any data loss whatsoever.

I took that from something that someone else posted here a while back. Essentially, while I'd really prefer that everyone be doing backups, all I care about is that they know that they are responsible for backing up pre-service, and I won't be held liable for any data loss. And that's in bold face and they have to initial.

There are just too darned many things that "could be unstable" about any residential system and I'm not going to be held liable if a "house of cards" situation occurs in the course of service.