Legal Ethics

Screwing Up

On a clear summer day, my father carefully drove his car out of his narrow one-car driveway past the retaining walls on either side and onto the street. He then turned to the right and parked the car in front of our house. Or so he thought.

After he exited the car, he found out the hard way that rather than put the car in park, he had actually left it in reverse. The car retraced the path from whence it had come until it crashed into the retaining wall on one side of the driveway.

Not one of my father’s greatest days. When Ed who lived across the street asked my father how the side of the car had been damaged, he replied, “My wife does not want me to talk about it.”

Dad did not actually say that my mother was the cause of the accident. He just implied it. Soon the entire street believed that it was my mom who had damaged the car.

Somehow despite this lesson from my youth, I learned that accepting responsibility is important in life.

The practice of law affords a person many opportunities to stare deep into their soul, think about what type of person they are and contemplate taking responsibility for their actions.  There can be serious consequences for getting it wrong.

The simple fact is that law is a demanding profession. Mistakes can and will be made. Lawyers by their training are hyper-sensitive to the financial consequences of making mistakes. I worried about that when I was practicing law. But what really kept me stressed was the feeling that if I made a serious mistake, it would impact my standing among my peers and my clients. Perhaps I was the only lawyer whose self-confidence was a bit shaky, but somehow, I doubt that.

The problem with fear is that it clouds logic. Every lawyer will make mistakes. Good lawyers will quickly own up to them and deal with them properly. Others will instead stumble about making things worse.

How do lawyers make a bad situation worse? Let me count the ways:

  1. They forget that they may have a professional obligation to disclose the error to their client and recommend that the client obtain independent advice. The last thing that you need after you already have a problem is to be reported to the Law Society for professional misconduct.
  2. They try to fix things themselves, ignoring the risk that by doing so they will afford their insurer the opportunity to deny coverage.
  3. Most importantly, they ignore the old saying that ‘a lawyer who represents himself (or herself) has a fool for a client.’

Lawyers tell their clients that fixing legal problems requires objectivity, and that it is well worth it to pay for advice when you have a problem, but we sometimes forget that when we are the ones who are in trouble.

Some final words for Associates. All of this applies to you. In addition, you may have an obligation to disclose mistakes to the Partners. And always keep in mind that your obligations to your client, your insurer, and yourself, apply whether or not the partners want you to comply with them.

2 replies on “Screwing Up”

Great advice, especially for juniors. As someone once told me, “the partner told me to do it” is not the most convincing excuse in front of a regulator for doing something bad (understandable as that is).

There have been some terrible cases of junior lawyers having been held to account for following the instructions of senior partners. Lawyers have to remember that whether they have held their license to practice for 20 minutes or 20 years they are equally responsible for complying with the rules.

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