The Advisory: Volume 8, Issue 1, January 2010

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Ethically Speaking

Do I Need To Report Myself?

By Ross McLeod, QC, Practice Advisor, Law Society of Alberta

Mistakes! Everyone makes them. Doctors, they say, bury theirs. Lawyers’ mistakes have the potential to bury the lawyer. Avoiding mistakes is not the theme here. We aim to provide a framework for assessing and managing lawyer mistakes - the minor to the monumental.

Upon learning of a mistake, you need to develop an action plan to identify, assess and remedy it -- without making it worse. After a sleepless night, it’s time to take steps to deal with the problem. It’s always a good idea to call the Law Society Practice Advisors. We find that lawyers often put the cart before the horse and ask, “Do I need to report myself?”

Next month, we’ll deal with part two: Tips for Delivering Bad News

Make A Plan

Mistakes do happen. What now?

Like the analysis of all legal problems, start with the facts. Self reporting may be the last thing to consider. Many firms have an in-house ethics partner or go-to senior lawyer who, like the Practice Advisors, will attempt to bring a measure of comfort and confidentiality to the discussion. Even if a lawyer is fully able to deal with the matter, it is best to get an objectively clear picture of “what happened here?”

Make a plan. An action plan should include the following elements:

1. Identify the Nature of the Mistake

Ethics or practice or both? It makes a difference. Generally, ethical missteps do not require a lawyer to make a self report to the Law Society; it’s somebody else’s job to report you. Criminal charges against the lawyer, however, must be reported: s.83 Legal Profession Act. Malpractice errors potentially causing loss to clients or others demand a report to ALIA . Some problems may be hybrids, like the Rule requiring firms to report trust shortages.

2. How Bad Is It?

Missed a meeting? Or a court date? Bounced a trust cheque? Got sloppy drunk at a CBA function? Overlooked the tax consequences of a settlement? Missed a limitation?

The potential consequences flowing from the mistake serve to define the seriousness of it. First, identify the range of actors who are likely to be affected by the mistake: client, colleague, opposing lawyer, the justice system, yourself. Can you think of others? Then consider the range of consequences that might be involved: economic loss, adverse legal outcome, professional career, personal harm, status or esteem, delay.

Only after gaining a sense of the risk of prejudice associated with the consequences can you move on to develop a remedial steps.

3. Prepare a Remedial Plan

Most of us would rather disclose our tax returns or have a root canal than admit our ethical or practice failures. The worst things you can do are brood over a mistake or pretend it didn’t happen. Concealed mistakes tend to become worse with time. Delay, for example, might prejudice your own insurance coverage, putting your family’s financial security at risk. Now that you have acknowledged responsibility for a mistake, fix it and move on.

  • Is help needed? Making a mistake compromises a lawyer’s objectivity and professional judgment, which can put the lawyer in a conflict of interest position with the client. Sometimes, the failure of the client’s cause might have the effect of the vindicating the lawyer’s error: “My mistake didn’t matter, because the client was going to lose anyway.” Talk to the in-firm ethics partner, a Practice Advisor or a trusted colleague.
  • Identify the possible outcomes and select the optimal one. It is almost always the course that best serves the interests of the client. Coincidentally, that usually is the smartest thing for the mistaken lawyer. Solutions may range from a modest apology to firing the client.
  • Develop a communications strategy. Figure out who needs to hear from you, the appropriate message, the setting and the timing.

Put The Plan Into Action

Don’t delay implementing your plan. In some cases, it may include withdrawing from the representation and transferring your file to the new lawyer. The timing of an ethical screen may influence the court concerning its effectiveness. Our next article will talk about how to communicate effectively about our mistakes.

Report to ALIA if Necessary.

You may indeed need to report yourself if there is a real or potential negligence claim that could be made against you. The terms of the Alberta Lawyers Insurance Association group a policy provide: An Insured shall, as soon as practicable after learning of a Claim or becoming aware of circumstances that might constitute an Occurrence or give rise to a Claim, however unmeritorious, give written notice to the Insurer.

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