Maybe you were lucky and opposing counsel was able to delete the inadvertent email you sent her before she read what would have inevitably blown your whole case. But what about for those lawyers who were not so fortunate? Did you commit malpractice? Do you anticipate hearing from disciplinary counsel? Certain mistakes can be damaging to your career. Others just serve as a warning to be more careful. How you react to your mistake can prevent the bad from becoming worse. What not to do…
Hold your breath and hope the mistake goes away
It won’t, and you need to examine if the mistake is simple and can be fixed or has jumped over the line into legal malpractice territory. That’s going to be done on a case-by-case basis but ignoring the situation will only make matters worse. It could even appear that you are trying to conceal the mistake.
Talk to your supervisor, a trusted colleague, or if your firm has an Office of General Counsel, talk to one of its members. Talking the situation through can help you determine if you need to disclose the mistake to the client, if you are able to still represent the client, and whether you may need to get separate counsel. If something more serious does come of the mistake, doing nothing will reflect poorly upon you should disciplinary counsel launch an investigation or file a complaint—especially if you fail to respond.
Shift the blame
Blaming your clients or colleagues for your mistakes will not alleviate the concern and may cause you more issues down the line. Perhaps your assistant truly was the one who failed to timely make the filing or put the hearing date in your calendar, but blaming that assistant is not going to be a satisfactory explanation to your client and could even make you look dishonest or careless. You are allowed to delegate tasks to nonlawyers, but ultimately you are still responsible for the error.
Maybe you lost your cool with opposing counsel and are putting off your apology. Maybe you just completely forgot about a hearing, and you are dreading calling the court to explain. Waiting to right your wrong can make you appear less than sincere and may even serve to dissuade opposing counsel or the judge from excusing your misstep and allowing you to get that continuance that you so desperately need.
On a final note, make sure you’re covered if the mistake is serious in nature. Generally, you must notify your liability insurance carrier once a claim has been asserted against you. But it may be wise to notify your malpractice carrier if circumstances arise that lead you to believe a claim will be made. You don’t want to wait so long that you jeopardize your coverage.
Word to the wise
You didn’t spend this much time to get where you are in your legal career just to sit on the sidelines, so focus on preventing future mistakes.
- Don’t dabble in areas of law that you are not familiar with—competence is key.
- Communicate with your clients. Emotions are often involved and you don’t want to be on the receiving end of a grievance, because your client is left in the dark about the status of their case.
- Pay attention to the recipient list before you hit send. Pay attention to where you are and who is listening when you are talking about your client’s case. Watch what you say on social media. Confidentiality is crucial to your representation.
- Do your homework before agreeing to take on the representation. Before you start on anything, check for conflicts.
- Act with diligence. If it can be done today, don’t wait until tomorrow.
- Extend professional courtesy to your colleagues and opposing counsel when they make mistakes. You may need them in the future.