May/June 2019

Ethics

Addressing Our Mistakes

Lucian T. Pera

Lawyers are human. We make mistakes.

And there’s data that we’re making mistakes more frequently. Every malpractice carrier reports an increase in frequency and severity of losses from mistakes. Some claim mistakes are the No. 1 cause of claims and losses.

Why? No one knows for sure. Informed observers point to the increased pace of our work, driven by client demands for faster answers and deliverables. Who hasn’t had to immediately answer a serious client question on the cellphone on a commute or on a weekend—a question that 10 years ago might have caused us to do at least a few minutes of research? Thinner staffing of work—again, often due to client demands—hasn’t helped.

There are certainly things we can do to make fewer mistakes, both individually and for our offices, firms and law departments. Pushing back on the client anxious for an immediate and definitive answer. Warning that client of the need for research and your inability to do it so quickly, and confirming by later email that you answered the question, at their request, without full consideration. Careful checklists for frequently handled tasks. More proofreading of documents. But that’s another article.

Because mistakes inevitably happen, every lawyer needs to know how to cope with them once they do. How? Every mistake is different, but common chords run through how we should handle them all. Let’s review some.

Get Help

First, get help. Seriously. As soon as you think you may have erred, find someone to help you think the matter through and respond. If you’re already tired of reading about mistakes, that’s okay: stop here. Because “get help” is far and away the most important advice you can get or follow.

None of us can be completely objective about our own errors. It’s human nature. From years of experience with lawyers, I can also guarantee you that we’re less likely than most humans to be objective about our own mistakes. Hubris is an occupational hazard.

Bring in your partner, your associate, your paralegal, your secretary or your ethics lawyer. You can even start with your spouse. Talking with someone—even someone who is not a lawyer—will force you to talk and think through the issue afresh, with the benefit of another set of eyes. Being more objective, they’re also likelier to see the need for other, more expert assistance.

Tough Questions

Once you have help, the real work begins.

Dealing with a mistake can be complex. Multiple, interrelated questions each compete to be resolved first. The answers can be hard.

Ethics opinions give considerable guidance, but the most comprehensive collection of help was published by the ABA ethics committee in its April 2018 Formal Opinion 481.

Let’s review some of the most important questions.

Repair

Question: Can the mistake be fixed? Some mistakes are small and can be fixed. You missed a disclosure deadline in a scheduling order, but so did the other side, and the court will extend it as a matter of routine. But some deadlines cannot be extended.

There may also be several options for repair, some better than others.

In those first panicky moments, all the ways the problem might be fixed may not be apparent. In my experience most lawyers, even in areas where they most frequently practice, don’t immediately identify every possible way a repair can be made. That’s why getting help from a practitioner experienced in the area might be the best first or second phone call.

Identifying the range of possible repairs is important because different remedies may have different implications for the client and for you, and those implications may not be the same. Conflicts lurk in those differences.

To Tell or Not to Tell

Question: Do you tell the client? Short answer: If the mistake is—or even may be—material to the representation, yes.

ABA Model Rule of Professional Conduct 1.4 requires us to “keep the client reasonably informed about the status of the matter.”

ABA Opinion 481 concludes that “an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.” The Opinion describes mistakes as being on a continuum—a minor, easily correctable and corrected mistake, with no risk of harm to the client, may not require disclosure, but one that creates a significant risk of harm to the client does. What if it’s a former client—that is, you discover the error after the representation ends? ABA Opinion 481 says that the ethics rules do not require disclosure to the former client. Maybe so, but don’t reach that conclusion without real help. After all, both for current and former clients the ethics rules are not the only source of our duties to clients, and lawyers do have fiduciary duties to clients and even some to former clients.

One final thought that motivates many lawyers: Recall that, in many jurisdictions, the statute of limitations on malpractice will not start running unless and until the lawyer tells the client the basic facts concerning the mistake. Acting on your impulse to not inform the client may mean the statute never runs.

Awkward Conversations

Question: What do you tell the client? You don’t necessarily have to admit you committed malpractice; in fact, you usually don’t. But you have to inform the client of enough facts to let them understand what happened and how it might affect them.

This is the point where help from another lawyer might be most useful.

One practical tip: Experience teaches that, in many situations, clients are far more understanding of the lawyer’s error than the lawyer expects, and far more sympathetic.

Notifying the Carrier?

Question: Do you report it to your carrier? The more serious the mistake or its implications, the more likely you need to report it.

Pull out your policy and identify your obligations—and your options. Remember, if you are able to report to the client claims or circumstances that may give rise to a claim, even before any actual claim, reporting may well fix coverage for any later-asserted claim. Depending on your insurance situation, that could be valuable.

Also, remember that, if you decide to report to the carrier, they may be helpful in finding a path forward. They might hire you counsel to help, even before a claim.

Conflicts

Question: Can you ethically continue your representation? This may be the most dangerous question.

Does the mistake or the implications of different repair options create divergent interests between you and the client? The normal conflict rules apply here concerning the interests you and your client have arising from the mistake. No uniform rule can answer this question.

On occasion the lawyer’s interest in remediation is perfectly parallel to the client’s. But frequently the lawyer or his or her firm might have an interest in handling the problem in a way that minimizes exposure to the client, while the client’s interest might argue, for example, that the client should blame the lawyer in an effort to sort out the consequences.

If the lawyer’s and the client’s interest are not completely aligned, then ABA Model Rule of Professional Conduct 1.7(a)(2) may mean that the lawyer has a “material limitation” conflict—a personal interest arising from the mistake materially limits his or her unfettered ability to act in the client’s best interest. If so, the lawyer cannot continue the representation unless the conflict both is consentable and the client actually gives informed consent.

Outside advice for the lawyer is invaluable here. In fact, advice for the client from some other lawyer may well be in order. After all, if you are seeking a conflict waiver from a client, you can hardly give the client legal advice on whether to give the waiver.

Prudence

Question: Even if you can, and even if the client wants you to, should you continue the representation? As with every conflict of interest, just because a conflict is waivable and the client wants you to continue representation, you often have a choice. That choice must be informed by prudence: Is it in the lawyer’s or his or her firm’s interest to continue the representation?

Oh, and did I mention ... get help. After all, we’re only human.

Lucian T. Pera

Lucian T. Pera is a partner in the Memphis, Tennessee, office of Adams and Reese LLP. He counsels lawyers, law firms, clients and those who do business with lawyers and law firms on ethics and professional responsibility issues. He’s the immediate past president of the Tennessee Bar Association and a past ABA treasurer. Lucian.Pera@arlaw.com

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