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Prevention Is the Best Cure
You can minimize the opportunity for mistakes by avoiding bad clients and staying with your practice area niche.
Bad clients tend to do bad things. They may push you to approach a case in a different way. They may push you to pursue a certain argument or legal theory that you don’t believe in. Or maybe they just drive you crazy and cause undue stress. A bad client will cloud your judgment, which will only result in bad decisions for everyone.
While straying from your niche can be a great learning experience, it is also a path filled with landmines. Even a “basic” will package is not all that basic if you’ve never drafted one before. Sure, you can figure it out. But what you don’t know will hurt you, will probably get you fired, and could result in an ethics complaint or malpractice claim. The next time someone calls you with a great complex IP lawsuit in federal court, politely decline unless that is what you do.
However, even if you follow that advice, you are still going to make mistakes. Here’s how you should handle them.
Step 1: Make Sure You Made a Mistake
“Confirm a mistake was made before calling your client and telling them you’re an idiot.”
Don’t push the panic button unless the sky is actually falling. Investigate, analyze, and confirm you actually screwed up. I’m not talking about deleting emails, destroying evidence, or creating an outlandish excuse. Simply confirm that you actually goofed before calling your client and telling them you are an idiot.
For example: You freak out and realize you blew the deadline for responding to discovery. That’s bad, maybe very bad. It’s weird; you never do that. Wait? Didn’t you request an extension? Yes! You did! And it’s right there in your email thread.
Maybe it’s not in your email thread. Did you make a note somewhere else? Yep! There’s your scanned Post-It note. And it’s also noted in your time entries for the case.
I’ve had those moments. They are not fun. But I was also able to breathe easy after taking a deep breath and making sure that I did (or didn’t) actually screw up.
Examples of real mistakes would be:
Failing to include a mandatory defense in a pleading.
Actually blowing a deadline with no excuse and no recourse.
Failing to communicate a settlement offer (or failing to convey the correct offer).
Failing to show up for a hearing in court.
If you make a mistake like that, take the time to figure out the scope of the damage.
Step 2: Figure Out How Bad It Is and What Steps You Need to Take
“You need to do your due diligence when you make a mistake.”
If you made a mistake, feel free to curse out loud, run outside screaming, or take a long lunch. It happens. It sucks.
Now that you’ve let yourself have it, you need to figure out how bad it is. At a minimum, you need to evaluate the situation and decide what is appropriate. Unsurprisingly, theethics rules give you a fair amount of leeway between notifying clients of small mistakes (like a minor typo) and major mistakes (something that would lead to a malpractice claim). You will also want to review Rule 1.4 (communication with clients) and Rule 1.7(conflicts of interest).
Perhaps more importantly, you need to decide if you need to notify your malpractice carrier. Start by reviewing your actual policy language—it is probably much more broad than you realized before reading this article. There is a strong likelihood that your policy requires timely notification of a claim (or even a potential claim). And you may be denied coverage if you fail to timely report a potential claim (some policies define a claim very broadly).
The good news is that if you are required to notify your malpractice carrier, they can help you with the situation. That may include advice or even helping you prepare the proper documentation. In some cases, you may need to draft a letter advising your client of the mistake and how it impacts their case. Or you may need to draft a letter explaining there is now a potential conflict in your continued representation, and you may need to get your client’s consent to continue representing them.
In other words: you need to do your due diligence when you make a mistake. At a minimum, you need to review your state’s rules of professional responsibility and make your malpractice carrier aware of the situation.
Step 3: Get Your Client in the Office or on the Phone
Email is not an option for delivering truly bad news unless that is the only way to communicate with your client. Email is impersonal, not conversational, and fails to get the job done. This is especially true when you are having a conversation that may fundamentally change (or even end) your relationship with your client.
I recently had a client who was only available via email. With that in mind, I made the decision to deliver some bad news via email. It did not go well. This torpedoed our working relationship despite efforts to pull it back from the abyss.
The bad news created a rift, and the rift grew bigger because of the delivery method. You cannot explain things in an email the same way you can over the phone or in person. If this conversation had occurred over the phone, I could have attempted to course correct before it was too late.
Let’s be fair, this will not be a fun conversation. But I suspect the meeting will go much better if you have the courage to look your client in the eye and tell them you made a mistake (or at least tell them over the phone).
Step 4: Fall on Your Sword and Explain the Options
“Remember the person you are apologizing to is someone that relied on you.”
“I made a mistake.”
That’s how you start the conversation with your client. Not with “yeah, so, I’ve been super busy and my admin forgot to tell me about the hearing,” or, “my personal life has been a mess and I’m just not thinking straight.”
Sure, you can explain yourself. But own up to it first. There’s nothing worse than an insincere or utterly BS apology. Remember the person you are apologizing to is someone who relied on you. They can also potentially sue you. To be fair, you may have an ethical responsibility under rules 1.4 and 1.7 to notify them of a potential malpractice claim and that they have to consent in writing to your continued representation.
In other words: you can’t hide that from your client.
That said, who do you think is more likely to sue you: a client to whom you provided an honest apology, or a client you strung along with excuses? Ultimately, it may not make a difference, but I’m relatively certain that being honest is the best option. Don’t forget that your clients are human too—we all make mistakes. People who own up to them are much easier to forgive than people who try to cover them up.
Beyond that, you have to tell your client how your mistake will impact the case and how you intend to fix it. Unless you blew the statute of limitations (and potentially even then), there is usually more than one option.
Regardless what the options are, be sure you know them before you talk to your client. There is an approximately 0% chance your client will have faith in you if you say, “I made a mistake, but I don’t know how to fix it.” There is a big difference between not knowing the best way to fix it and not having a plan to fix it. There is a 100% greater likelihood that your client will stick with you if you have a plan.
Step 5: Get Over It
You will screw up. It will suck. But you have to move on and do your job.
Regardless of whether you made a minor mistake or a venti-triple-shot mistake, you have to put it behind you. To be fair, our job is to be meticulous, analytical, and get results for our clients. But we screw up. Everyone screws up. I’m sure I made at least 27 typos in this post before someone edited it.1
Great lawyers shake it off and get right back in the game. If you cannot get past your mistake, then you should consider voluntarily withdrawing from the case.
If your client is sticking with you, pull it together. Although you are not obligated to double your efforts, hopefully your ego and moral compass are both screaming “let’s fix this.”
Moving forward, learn from your mistake. The best thing about making a mistake is that you should (hopefully) never make the same mistake again.
Author:
Randall sues debt collectors that harass consumers, assists consumers with student loan issues, and defends consumers in debt collection lawsuits. He is also an attorney instructor at the University of Minnesota Law School.
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