We learn early on in law school to strictly adhere to ethical rules and to avoid ethical violations at any cost. We learn, for example, not to lie or misrepresent the facts or the law to any tribunal (Model Rule 3.3). We learn not to communicate with an adverse party represented by counsel without their attorney’s involvement or consent (Model Rule 4.2). We learn about how to safeguard client property (Model Rule 1.15) and how to maintain client confidentiality (Model Rule 1.6). But what about when something goes wrong? Yes, we have all heard the horror stories of the “attorneys gone bad,” but what if it’s us? What if we fail? From our schooling, we know there is only one possible outcome: doom, disaster, famine; the end of a career; the downfall of an attorney. But that is not entirely true. Redemption, recovery, and regrowth are all possible, if done right.
Ethical violations are not to be condoned, but we cannot ignore that mistakes and errors in judgment happen, even to good attorneys. While knowing that an ethical violation is a serious matter and can end a legal career is a powerful deterrent, it is important to remember that there may be a way back. The first step back is to admit that there was a mistake, misstep, or bad decision. Ethical missteps can be easily and unnecessarily amplified when attorneys ignore the issue, hoping it will go unnoticed or fix itself. Problems are most easily addressed at the first sight of trouble and, as the cliché goes, the cover-up can be worse than the crime. We also have ethical obligations to keep our clients informed and to consult with our clients when their expectations are not aligned with our ethical obligations (Model Rule 1.4). Further, when the issues come to light, it is important to take responsibility. In fact, boards and panels investigating complaints of ethical violations often include honesty, cooperation with the investigation, and taking responsibility for wrongdoing as factors weighing against harsher punishment. Cover-ups, deception, and excuses weigh strongly the other way.
An honest mistake addressed head-on when discovered coupled with cooperation through the disciplinary review, may result in discipline less than disbarment. Although taking responsibility may not save attorneys from discipline, any punishment should be accepted with grace and used as a learning experience. The goal should be to understand the wrongdoing that occurred, to learn how it happened, and to use the negative consequences to change for the better. The punishment could even be used as a means to educate others and provide guidance on how to avoid the same mistake. What better story of resilience than someone who errs and uses that error to help educate others?
It is clear that we should all strive to be the most ethical attorneys we can be. We should guard against ethical issues by understanding the rules and paying close attention to their application in the everyday practice of law. But, if we err, we must be diligent in limiting that error, in bringing it to light as necessary, in taking responsibility, in accepting the consequences with grace, and in using the negativity of ethical violations to bring about positive change. Only then can we recover from the issues that led to ethical problems and regrow our reputation and career.