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Mistakes happen and admitting them can be difficult. Why might lawyers find it difficult to own up to their mistakes and what ethical considerations are at play?
What’s in a mistake?
Legal professionals may find dealing with mistakes difficult because some can prejudice a client’s position or result in losses for the client or the firm or organisation they work for. A mistake could imply a lack of care or competence, which can cause embarrassment or feelings of guilt, shame or fear about the client’s position or about having to talk about the situation.
Key qualities for legal professionals, such as attention to detail, manifest as widespread perfectionism in the profession, which not only makes accepting mistakes more difficult, but is also linked to defensiveness, poor resilience, susceptibility to stress, anxiety, burnout and a tendency to unhealthy coping strategies.
The nature of legal practice produces pressures and simultaneously discourages practitioners from acknowledging them, in part due to the false notion that lawyers should be impervious to weakness.
The adversarial nature of many aspects of law means a mistake by one party is an opportunity that can be capitalised on for the benefit an opponent’s client, which dissuades disclosure or open discussion about mistakes.
Not all mistakes are born equal
Some may also fear the regulatory consequences of a mistake, but not all errors are equal and even if an act or omission does result in the breach of a regulatory rule, it is important not to lose sight of the fact a breach will only amount to professional misconduct if it is serious.
Another important point to keep in focus is the fact that the majority of mistakes result in little or no consequence to the client. Additionally, firms and other organisations carry insurance precisely to protect clients (and themselves) from financial losses. However, that safety net can only be triggered once an error is acknowledged and the relevant people are told about it.
Delaying or failing to disclose a mistake can create related but separate problems that can be considerably more damaging than the original error, such as jeopardising insurance cover or giving rise to regulatory concerns about the honesty and integrity of the individual(s) party to the error.
Dealing with mistakes is not always straightforward but, rather than something to fear, can provide useful lessons and strengthen resilience.
In practical terms, once an error has been identified, the first step is to consider who to share it with (a supervisor, compliance colleagues, insurer, the client and regulator) and then share it, so that action to address the error can be taken, where possible.
Sorry seems to be the hardest word
Saying sorry when a mistake is made can be powerful but, according to research commissioned by the Legal Ombudsman, lawyers struggle to apologise sincerely to their clients. Whether apologising is seen as a weakness or bound up in fears about admitting liability is unclear, but it is clear that failing to apologise is likely to damage the client-lawyer relationship.
Mistakes can add complexity, but they are a fact of life and legal professionals must create environments for themselves, their colleagues and their clients that are free of fear and shame about mistakes and are instead full of understanding and forgiveness.
Emma Walker, Associate solicitor in regulatory and disciplinary team, Leigh Day and LawCare champion
A version of this article was first published in the January 2021 edition of the Solicitor’s Journal (Volume 164 No.1)
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