JULY 2019 | AROUND THE ABA

Mistake? Here’s your next steps

“All lawyers make mistakes and it does not matter how long you have been practicing, where you went to school, how many hours you bill or how hard you try,” said Michael S. LeBoff, partner at Klein & Wilson, Newport Beach, Calif., during the ABA webinar "Oops: What to Do When an Attorney or Expert Screws Up."

When a mistake happens, LeBoff says, communicate, communicate, communicate. Then do the following:  

  • Promptly inform the client.
  • Consult with the client about how the client’s objectives are to be accomplished.
  • Keep the client informed about the status of the matter.
  • Consult with the client about any relevant limitation on the lawyer’s conduct.
  • Explain the matter to the extent necessary to permit the client to make informed decisions regarding the representation.

“This allows you to get on top of the mistake early, get it fixed and move on,” he said, adding, “The bigger the mistake, the likelier the client is to consider terminating the relationship.”  

A client is less likely to terminate a lawyer who has done good work for them over an extended length of time based on a mistake. You also want to look at the complexity of the matter and the proximity to the trial date.

Another factor is when to disclose a mistake. “It will depend on the magnitude of the mistake and the immediacy of the resulting harm,” LeBoff said. “A lawyer can try to fix a mistake prior to disclosing it to the client provided the lawyer does so promptly and takes immediate action.”

“The lawyer can also consult with in-house counsel or ethics counsel before disclosing the mistake to the client,” he said. But, “this is something you have to do promptly once you have identified the mistake.”

Under ABA Model Rule 1.4, an attorney has no ethical obligation to disclose to a former client about material errors even if the error caused harm to the client. “If you choose not to disclose a mistake, you need to be clear about who is a former client and who is a current client,” LeBoff said. And, “even if your firm represents the client in multiple matters, that is considered a current client even if a substantial amount of time has passed.”

LaToyia Watkins Pierce, senior claims counsel at AXA XL, a division of AXA in Dallas, offered these tips:

  • Let the client know there is an issue, whether good or bad.
  • Review the strategy for how the mistake affects the case, case strategy or overall outcome of the case.
  • Develop a game plan for how you are going to fix the mistake.
  • Do not charge the client to fix the mistake.

Still, Watkins Pierce said: “You need to tell the client it will cost a certain amount of dollars to fix the mistake, but we will not charge you for it. This will make the client feel better in going along with any changes to the strategy because the client understands that mistakes do happen.”

David E. Benkert, managing director of Ankura Consulting, Inc., in Los Angeles, talked about what happens when an expert makes a mistake.

“If it’s a data error, we have to provide how this mistake would change the strength or overall opinion of the case, if at all,” he said.

If the error is in footnote references, the report should be updated with a list of changes that would supplement the expert’s report.

If the error is in the expert’s deposition, where he may have misstated something that conflicts with what is in the written report or if there is a fact that the expert got wrong, “the most effective way to handle it would be to have the expert go through the report to make updates and changes,” Benkert said.

“A more challenging issue is when there is an error in the analysis and can potentially have an impact on the opinion,” he said.

“It’s imperative the error in the analysis is updated prior to getting to trial,” Benkert said. Referring to the O.J. Simpson case, where a DNA expert made a mistake in the blood analysis that was identified at trial, “the expert was recalled as part of the testimony and was asked to explain the error to the process and this created a tremendous disruption,” he said.

Sometimes the expert does not receive all the information they should have as part of the process. “Many times, this gets discovered before the expert report is issued so the expert has an opportunity to go back and review the additional information to evaluate it, analyze it and determine how it may affect their final opinion,” Benkert said.

A good expert will also ensure the deposition binder is complete and up-to-date with all the documents, including footnote references.

When an expert makes a mistake, Watkins Pierce said, “You have to ask how we got here and what kind of effect this would have on the case.”

“It’s also important to consider if the expert was even necessary,” Watkins Pierce added. “If the expert is deemed necessary, then replacing the expert would have to be a conversation that is had between the attorney and the client, which goes back to communicate, communicate, communicate.”

As for legal malpractice cases, LeBoff said, “The good news for lawyers and experts is that most mistakes do not rise to the level of a colorful, legal malpractice claim.”

The elements of a legal, professional negligence claim or malpractice claim include duty, breach, causation and damages.

“Attorneys are not expected to be perfect, but they are expected to perform with a level of skill, care and competency,” he said. 

LeBoff said attorneys can avoid mistakes if they stay away from:

  • Advising clients on anything outside your area of legal expertise
  • Blaming mistakes on associates or staff. You are responsible for properly supervising your staff and ensuring they understand how to do their jobs without making serious mistakes
  • Being overconfident in your knowledge and not conducting proper research on a case or understanding the rules or new laws that may have come into place since you started practicing.
  • Not communicating with your client when mistakes happen and not letting them know what’s going on with their case
  • Covering up mistakes instead of fixing them

Oops: What To Do When an Attorney or Expert Screws Up” is available on demand. The program is sponsored by the ABA Section of Litigation; Solo, Small Firm and General Practice Division; Standing Committee on Paralegals; Senior Lawyers Division; Young Lawyers Division; and the Center for Professional Development

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