The importance of admitting mistakes

Mistakes. All lawyers make them sometimes. And we hate to admit it when we do.

Fortunately, in the vast majority of situations, the mistakes we make are of little or no consequence. They are easily corrected, often before anyone else even has a chance to detect them. They don't matter. At first, a key precedent or statute may be overlooked, or a contract may be misinterpreted. But further study and attention usually ensures that such errors never see the light of day.

Indeed, like many professionals, a good lawyer will make it a practice to go through routines that are likely to identify and correct errors before they cause harm.

But what of those unfortunate situations when an error is made, and the client is placed at risk? By admitting the error, the lawyer may invite a malpractice claim. On the other hand, quite often a cover-up ends up being worse than the misdeed.

On balance, there are a number of reasons why it is preferable to disclose to the client promptly and candidly any consequential mistakes, even if doing so may amount to admitting malpractice.

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Minimize long-term harm

First, most clients would prefer to know sooner rather than later if you made a mistake that placed them at risk. Indeed, putting yourself in the client's shoes, it is hard to imagine why a client would prefer to remain ignorant.

If you already have a good attorney-client relationship, many clients would probably appreciate your candor and be more forgiving than if you made a mistake, know you made a mistake, and kept the client in the dark about it.

Having this difficult discussion with the client can at least start the process of minimizing any damage that may have been done. It also gives you the chance to continue to work with the client as a team to try and remedy the mistake. Sometimes, the client may have ideas or solutions that may not be readily apparent. The client will almost certainly prefer to try and find a solution other than asserting a malpractice claim.

A good example of a lawyer who did the right thing and confessed his mistake immediately can be found in Resnick v. Baker, 86 Mass. App. Ct. 1115 (2014) (unpublished).

The defendant attorney had obtained a "highly favorable result" in a case for his client, the plaintiff. But then the attorney "became aware of the potential for a malpractice claim" after failing to timely file an attorneys' fee application. He immediately "initiated and negotiated a settlement agreement with the client whereby the client waived a malpractice claim and the lawyer agreed to waive certain fees and perform additional legal work without charge."

When the client later filed a malpractice claim despite the earlier settlement agreement between them, the attorney counterclaimed for, among other things, abuse of process.

At a bench trial, the judge found that the attorney had "communicated with [the client] all of the material facts regarding" the mistake and "was scrupulously honest and detailed in [explaining] the problem and in accepting it as his responsibility."

The judge also found that the client suffered no harm because the settlement agreement between him and the attorney made the client "better off" than if the error had never occurred. The attorney was awarded $450,000 on his abuse of process counterclaim against his former client.

Second, early recognition and disclosure of even a serious mistake might enable one to snatch victory from the jaws of defeat. I recently tried a legal malpractice case in which the defendant had misinterpreted a real estate purchase and sale agreement and wrongly advised his clients about the buyer's right to specific performance.

The misinterpretation led to litigation between the seller and buyer, which lasted several years. The defendant continued to represent the clients in the litigation. His files contained legal research showing that he was aware (or certainly should have been aware) that his earlier advice was wrong.

Nevertheless, the defendant never notified the clients of the mistake and never altered his litigation strategy, despite ample time and opportunity. Had he done so, he could have obtained a favorable settlement prior to trial. Instead, the defendant took the case to trial, lost and unsuccessfully appealed.

After more than 10 years of litigation in the underlying case, the clients had to pay damages exceeding $1 million - all of which could have been avoided had the defendant recognized and corrected his error. In the subsequent malpractice case, the lawyer was found liable for malpractice and damages against him were trebled.

As difficult as it may be for a lawyer to explain to the client a mistake and its consequences, the need for candor and good communication with a client is probably never greater.

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Zaheer A. Samee practices law with Frisoli Associates in Cambridge.

Published: Fri, Sep 14, 2018

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