GPSolo Magazine - October/November 2005
To Err Is Human—Even For Lawyers
The thought awakens me in the middle of the night. It’s a thought every lawyer has had: Have I missed something that I should have caught? Have I forgotten to do something that I needed to do? It’s the fear that drives lawyers to work the long hours they put in. Thus far I’ve been lucky and my fears have not withstood closer inspection in the light of day. But what do lawyers do in real life when they realize that something has gone wrong? What obligations do we have to our clients, the court, or the community?
In recent years the legal profession has been under assault from within, and unceasing cries abound for a return to professionalism and civility in the practice of law. This outcry is certainly not new to the profession—it has been ongoing through the past century, as the practice of law has grown, developed, and adapted to social changes.
Professionalism, civility, and ethics are related. Our ethics define the practice of law as a profession and not a common trade; civility drives our ability to act in an ethical manner yet allows us to zealously represent our clients’ interests. Lawyers typically represent their clients’ interests against another party’s interests. Whether a practice is transactional or litigious, a lawyer by definition deals with confrontation on some level.
In the context of such confrontations, lawyers try to avoid violation of professionalism, civility, or ethics. As a practical matter, ethical transgressions pose the greatest risk. Behaving in an unprofessional or uncivil manner will affect the lawyer’s practice—and the profession—over time, but a single ethical transgression can abruptly end the lawyer’s right to practice law. Furthermore, attention to our ethical obligations will produce the greatest level of professionalism and civility. For these reasons, we must be vigilant in guarding professional ethical obligations.
The ethical rules governing the practice of law can generally be divided into broad categories. One category governs our obligations to the public at large—being fair to opposing counsel and parties, refraining from discussing the merits of a case ex parte with the court or tribunal, being truthful, and restricting advertising. Other rules govern our relationships with our clients—avoiding conflicts of interest, being diligent, and communicating appropriately with clients. This last requirement causes our profession the most trouble.
Statistics from national, state, and local bar associations show that the single most prevalent complaint received against attorneys involves claims that the lawyer failed to communicate with the client. Furthermore, the same statistics reveal that such claims are leveled against attorneys who have been practicing for some time (in most cases, more than ten years). In general, it is not the beginning attorney who falls prey to claims of unethical activity, but the seasoned lawyer.
These statistics are quite logical when looked at from the practical standpoint of the modern practitioner. Young lawyers just starting in practice are typically supervised in some fashion by more experienced lawyers—partly because the vast majority of new lawyers begins working for governmental agencies or private firms (both large and small), where the new attorney’s practice is monitored. Most jurisdictions require that senior attorneys and law firms monitor and supervise their associates to ensure compliance with the rules of professional responsibility. This requirement was recently reinforced by the District of Columbia Court of Appeals, which affirmed the sanction of a partner in a 12-attorney firm for violations of the Washington D.C. Rules of Professional Conduct. In re Cohen, 847 A.2d 1162 (D.C. 2004).
Most new attorneys are also under much less pressure to generate business and bring in more clients. This added pressure faced by more experienced lawyers, particularly in small firms and solo practices, adds to the already stressful business of representing client interests. Ironically, the opposite situation also presents problems for older lawyers. If a lawyer has been practicing long enough to build up a solid reputation in the community and increase his or her client base, this will create additional demands on the valuable commodity of time.
When something does go wrong in providing legal services to our clients, we must, first of all, communicate this effectively to the client. The Model Rules and most state rules concerning professional conduct require that we keep our clients informed as to the status of their matters. Early explanations and information about the status of a case are critical to our being able to maintain a positive relationship with the client—even when things go wrong.
Communicating with our clients and keeping them up to date on their legal matters will go a long way toward alleviating much public and collegial dissatisfaction with the state of the profession. Many people are dissatisfied with legal services they receive because they entered into the relationship with unrealistic expectations, insisting (and believing) their claim is worth millions, or that they did nothing wrong and could never be convicted or held liable. By effectively communicating with our clients, we can work to lower these expectations and raise the level of satisfaction with the services provided by the legal community.
But what happens when a lawyer’s mistake causes the client to lose her case or miss an opportunity to purchase property—or any other “unimaginable” event that damages the client? Do we need to inform the client of the error?
Most jurisdictions do not require the lawyer to inform a client that the lawyer committed malpractice. However, the lawyer’s own knowledge of such a mistake may create a conflict of interest for the lawyer. Most state and model rules require that the lawyer not undertake representation where a conflict of interest exists. An attorney’s knowledge of potential malpractice likely would produce a conflict, which would attach the ethical obligation of informing the client to seek advice from other counsel. Thus, although lawyers are not required to explain any error, the act of suggesting that the client speak with another attorney certainly may invite scrutiny into the attorney’s conduct.
In addition to informing our clients, do we have obligations to inform other parties of potential errors? As a practical matter, attorneys should contact their professional liability insurer at the earliest opportunity; although this is not generally an ethical requirement, it may be a requirement of the insurance contract. Many states are now considering making liability insurance mandatory. Pros and cons exist on both sides of this issue. Liability insurance, however, does provide some level of comfort to the modern practitioner—we all are human and prone to make mistakes. That’s one very important purpose of maintaining insurance.
We must also distinguish between errors and malpractice. Malpractice is the breach of a standard of care that causes damage to our clients. It is often a close call whether an error rises to the level of malpractice. We all make errors; not all of them injure the client. Exercising professional judgment in deciding whether an error requires a report to an insurer is necessary. By contacting an insurer, the lawyer who has committed an error not only provides the company with notice, as required under the terms of the insurance contract, but also affords access to the insurer’s expertise in matters where—one hopes—the lawyer may not have experience. Insurers, after all, may have dealt with similar circumstances thousands of times.
Insurers also may appoint counsel to assist the lawyer in addressing the issue with the client and may be able to give an opinion as to the severity of the potential claim and the likelihood that a successful resolution is possible. In addition, informing the insurer may give sole practitioners an opportunity to gain perspective without fear of discoverability; in many instances states maintain that communications between insured and insurer are privileged. This benefit is fortified where the insurer appoints counsel to assist in providing advice on an issue.
So even if that fear that awakens you in the middle of the night is not just the product of your overactive imagination, don’t despair. Help is out there. And the first step to finding that help is communication.
John D. LaBarbera is an associate with O’Hagan, Smith & Amundsen, L.L.C.,in Chicago, Illinois. His practice includes the defense of professionals, including attorneys, accountants, and insurance brokers. He can be reached at firstname.lastname@example.org.