The Advisory: Volume 8, Issue 2, April 2010

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Ethically Speaking

Tips for Delivering Bad News

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

In this column in the January 2010 Advisory, strategies for dealing with mistakes, large and small, were discussed. The first stage of developing an action plan was to assess the nature and severity of a mistake, including the need for self-reporting. This column in this issue will focus on implementing the action plan in dealing with clients, colleagues, lawyers and others.

1. Dealing with the Client

Make sure you are personally the one to deliver bad news. Never let a client hear the worst through the media, other lawyers or uninformed sources. Be up front. In most cases, it’s more painful for the lawyer to deliver bad news than it is for the client to hear it. The client may actually be expecting it. Regardless, always be candid. A common theme in Law Society discipline cases is the failure to respond at all to clients when things go wrong.

Do not fess up via e-mail or voicemail. Always make a personal call or arrange for a meeting. Make sure you will not be interrupted. Help the client understand the ramifications of your mistake, offering possible alternatives or options. The client should know that you always have a plan and that the bad news isn’t the end of the conversation.

Be compassionate and understanding. Resist any urge to blame the client or anyone else, even if it was the client who precipitated the situation by withholding information or failing to provide documents. Even in the worst situations, most clients are comforted to know that you have the integrity to make disclosure of your mistake and take responsibility for the consequences. In one case, after disclosing a distressing conflict of interest that should have been caught sooner, a lawyer’s client said “Thanks for telling me; I wouldn’t want a lawyer who would try to work both sides. You’re the kind of lawyer I want for all my future work!”

2. Dealing with the Firm

Again, candor is the key. Many lawyers have made plenty of mistakes in their time. It’s a fair bet that you won’t gain greater respect by delaying, obfuscating and spreading blame.

Remember also that you are probably the person most familiar with the file. Complete the decision-making analysis sketched out last time and have the rudiments of a plan in mind when you meet with your ethics partner or colleagues. Communicate in person; accept responsibility; explain the possible consequences and describe your remedial plan.

3. Dealing with Other Lawyers

Keep in mind that you owe your client a duty of confidentiality, even after the retainer is terminated. Opposing counsel may be curious, but that does not make it right to disclose privileged or confidential information. If an error is of such magnitude that it forces a lawyer to withdraw, the other lawyer may be entitled to nothing more than your Notice of Ceasing to Act. The very acts of withdrawing from representation might “red flag” the vulnerability of your client and hamstring the new lawyer.

If you made an ethical misstep vis-à-vis the other lawyer, make a candid apology and get on with the matter. Apologies to other lawyers are best made in separate, discrete letters that are unconnected with other client matters. These lawyers are human and they make mistakes too and, in most cases, will respect your candid professionalism in taking responsibility. A meaningful apology can head off a complaint and restore a functional lawyer-to-lawyer relationship.

4. Dealing with the Court

You or your client may have inadvertently lied to or misled the court. Promptly correct the misinformation. It is never advisable to communicate unilaterally with the court. Provide a copy of the correcting letter to opposing counsel with the advice that, unless the other lawyer has some comment, you will be providing the letter to the court within the day.

Again, disclosure of confidential client information needs the authorization of the client, express or implied, and only so much information as is necessary to give effect to your purpose should be disclosed.

5. Dealing with Opposing Parties and the Public

If you lost your patience with the opposing party at examinations for discovery, for example, communicate your apology through opposing counsel. In the case of self represented litigants, do it in writing and, again, do not mix up the apology with the client matter.

6. Dealing with ALIA and the Law Society of Alberta

The best way to make an unmerited or trifling complaint go away is prompt candid cooperation with the Law Society’s complaints resolution officer. Don’t freeze, panic or ignore. Don’t put the letter from the Law Society unopened into the bottom drawer of your desk.

There is no positive duty on Alberta lawyers to report their own ethical mistakes. Clients, opposing clients and other lawyers do that for them. Once a complaint is made, don’t compound the error by delaying or fudging. Lawyers have a positive duty to respond to the Law Society. The Law Society can compel production of the lawyer’s file, notwithstanding lawyer-client privilege. Approximately 75 per cent of complaints against lawyers are resolved informally within 90 days.

The Alberta Lawyers Insurance Association (ALIA) insurance policy requires prompt disclosure of potential claims against the lawyer whether those claims have merit or not. Report early, report often. Reporting a potential claim will not prejudice your coverage or your premium. Failing to report or late reporting might prejudice coverage, exposing you personally. ALIA may appoint an adjuster to gather information and handle the claim or, in some cases, may appoint counsel at an early time. Cooperation with the insurer is also mandated in the policy.

Conclusion – Learn From Your Mistakes

  • Getting sued or complained about does not mean that you are intrinsically bad or incompetent.
  • Make a plan. Don’t cover up. Don’t spread the blame.
  • Communicate – confront your mistakes head-on and be candid.
  • Don’t be afraid to ask for help or to accept constructive criticism.
  • Keep up-to-date on the law and ethics in your chosen areas of practice.
  • Deal with mistakes and move on.
  • Respond promptly to ALIA and the Law Society

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