When Mistakes Happen
by Thomas P. Sukowicz
(County Bar Update, October 2001, Vol. 21, No. 9)

 

When Mistakes Happen

By Thomas P. Sukowicz, Director of Lawyers' Risk Management Services at Hinshaw & Culbertson, practicing out of its Ft. Lauderdale and Chicago offices (c)2001

Everyone makes mistakes, and lawyers are no exception. When lawyers make mistakes in the course of representing a client, however, they face potential civil liability, sanctions or disciplinary proceedings. Some mistakes have very serious consequences, such as the case being dismissed, a default judgment being entered, causes of action, parties or affirmative defenses being stricken. Lesser sanctions, such as monetary awards to opposing parties or opposing counsel, are costly and embarrassing.

Many mistakes are correctable and, if addressed properly, will result in nothing more than some inconvenience. If handled improperly, even an easily corrected mistake can become a nightmare. A good example of this is In the Matter of Stanley L. Kantor, 241 A.D.2d 103, 670 N.Y.S.2d 448 (1998). Kantor was retained to file suit to recover funds. He initiated litigation and obtained an order requiring the defendant to file a judicial accounting. When the defendant failed to file the accounting, the Clerk of the Court advised Kantor to seek an order holding the defendant in contempt. Instead, Kantor filed an order to show cause, which the Clerk rejected.

Rather than filing the correct petition, Kantor engaged in a scheme of deception to convince his client that the case was proceeding when it was at a standstill. He fabricated documents including signed court orders. Eventually the client realized that he had been deceived and complained to the Disciplinary Committee. Disciplinary proceedings were initiated, and Kantor was suspended for five years. What happened? Kantor testified at his disciplinary hearing that "paralyzing shame" at having his order to show cause rejected compelled him to deceive his client.

Kantor's situation is not unique. In one Illinois case, the Court held that the lawyer's failure to comply with a six-month notice requirement was not professional misconduct, but his scheme to conceal his error from his client was. In re J. Anthony Mason,122 Ill.2d 163, 522 N.E.2d 1233 (1988).

Mason was accused of neglecting a client's personal injury claim against the Chicago Transit Authority. He had begun working on the case immediately but learned too late of a statutory requirement that notice to the CTA of a claim must be made within six months of the injury. Rather than admit that he failed to comply with the notice requirement, Mason "concocted a somewhat extensive scheme to conceal the error from his client" that included a fictitious settlement of $700. The Illinois Supreme Court dismissed the charge of neglect, stating that Mason's failure to strictly comply with the statutory notice provision, by itself, "simply cannot be deemed neglect or incompetence." Mason was never in danger of being disciplined for his error. It is also unlikely that he would have been found guilty of malpractice. When he created the fictitious settlement, the case was pending and might have settled. The CTA had not filed a motion to dismiss, the CTA had written to Mason saying that its file was incomplete as to medical release forms, medical reports and bills.

Even if the case had been dismissed for failure to comply with the notice requirement, Mason's client may not have been able to prove damages caused by the failure to give notice because, as the court stated, his claim was "dubious". The emergency room records were inconsistent with the client's story, the police report was based solely on the client's report four days after the alleged accident and the client's medical records were not related to a bus accident but showed treatment for "acute alcoholism".

Mason's real mistake was trying to cover up an error that may not have resulted in any adverse consequences. He paid the client out of his own pocket for a dubious claim, he incurred legal fees in defending the disciplinary proceeding, he was assessed all of the costs incurred by the disciplinary commission in prosecuting his case and was publicly censured by the Supreme Court of Illinois. If he had sought the advice of competent, experienced counsel before embarking on his "scheme to conceal the error from his client," he might not have panicked and run blindly into disaster.

Lying to one's client to cover up a mistake is one way of getting into trouble. Lying to the disciplinary authorities is another. In an unreported Illinois disciplinary case, a lawyer was suspended for six months for doing just that. In re Alan Conrad Mendelson,M.R. 12894 (November 26, 1996). Mendelson accepted a personal injury case referred by another lawyer. He relied on the referring lawyer to communicate with the client and had little or no contact with the client himself. After filing suit, the case was dismissed for want of prosecution. Mendelson refiled the case in 1994. Shortly thereafter, the client discovered that Mendelson was acting as her attorney. She fired Mendelson and complained to the Disciplinary Commission. Upon receipt of the Commission's letter of inquiry, Mendelson withdrew from the pending personal injury case.

Although Mendelson should have communicated with his client and should have obtained her written consent to represent her, it is unlikely that he would have been prosecuted for this conduct alone. Mendelson guaranteed himself a disciplinary prosecution, however, by his attempt to cover up his conduct. In his response to the Commission's inquiry, Mendelson enclosed a copy of a letter dated June 22, 1992, purporting to notify the client of his involvement in the case. The Commission noticed that the letter contained a reference to the court docket number of the refiled case, 94 L 3910. During his sworn statement at the Commission, Mendelson stated that he actually sent the letter in June 1992 and denied having fabricated it even after the 1994 docket number was pointed out to him.

Mendelson testified at the hearing that he believed he had sent his client a letter like the one he fabricated, but when he was unable to find such a letter in his file, he panicked. He testified that his conduct caused him to become an insomniac, seek treatment from a psychiatrist and suffer stress-induced esophageal spasm. He was so ashamed at losing the respect of his peers that he contemplated withdrawing from the practice of law. He was suspended from the practice of law for six months.

What should you do to avoid turning a mistake into the end of your professional life? First, get a disinterested opinion from another lawyer. Having made a mistake means that you have a legal problem. A lawyer with experience in representing other lawyers brings objectivity, knowledge and experience to a problem that may be lacking in the lawyer who made the mistake. Another lawyer may point out to you ways in which the case you thought was lost could be saved or in which any damage resulting from the mistake may be mitigated.

If you recognize that you made a mistake, notify your professional liability carrier immediately. The importance of this cannot be understated. Failure to give timely notice of a claim may result in the loss of coverage. Also, do not make admissions or settle your client's claim without first notifying your carrier and obtaining its permission.

If it's possible to save a case by taking some action, don't become paralyzed with shame. Take whatever steps are necessary to correct or mitigate the matter and do so promptly. If you can't bring yourself to correct the error, find a lawyer who will. But keep in mind that in most states you may not delegate or refer a client's matter to a lawyer outside your firm without your client's prior consent.

You may also have to inform your client of the error. Lawyers have a duty to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information and to explain a matter to the client to the extent necessary to permit the client to make informed decisions regarding the representation. That does not mean that all mistakes must be reported to the client, particularly if the client is not harmed and the case has not been prejudiced or unduly delayed. If a client inquires into the status of a case before you are able to remedy an error, however, don't conceal it. And if the mistake is one that must be disclosed, it is best to make the disclosure by a personal telephone call or a meeting.

If you have partners, notify them so the firm can take appropriate action to correct or mitigate the error. If you are an associate, notify the managing partner or the partner designated to be notified of possible claims.

There are several things a lawyer should never do when discussing a mistake with a client:

1. Don't lie, misrepresent facts or conceal information. This, by itself, is misconduct and could guarantee a disciplinary proceeding or a civil claim that might otherwise have been avoided.

2. Don't become defensive and blame the client for the mistake or say things that would antagonize or incite your client.

3. Don't try to settle the claim directly with your client unless you first advise the client in writing to seek independent legal advice. Transactions with clients are presumptively fraudulent. Also, settling with your client without the permission of your professional liability carrier may result in the loss of coverage.

4. Don't attempt to condition any settlement of the client's civil claim on the client's agreement not to complain to the disciplinary authority of your jurisdiction or on the client's agreement not to cooperate in any disciplinary investigation or proceeding.

5. Don't make any unnecessary or inappropriate admissions such as that you have committed malpractice, that you caused the client's loss or that you owe the client a certain amount as the result of your error. These are admissions that can be used against you in later proceedings as party admissions, and they may not be true. In legal malpractice cases there are many defenses that may be asserted to defeat a finding of liability. The claim may be of dubious merit or the lawyer's error may not be the proximate cause of any damage to the client. In addition, such admissions may constitute a failure to cooperate with your carrier in its defense of your case and may result in loss of coverage.

When confronted with a mistake, don't panic. Be sure you know what happened. Consult another lawyer for an objective opinion about what can and should be done about it. Correct the error or mitigate its consequences if possible. Protect your interests by not making damaging admissions. Keep in mind your duties to your client, your partners and your professional liability carrier. And remember, making a mistake is not the end of the world.

 

This article, which originally appeared in the Aon Attorneys' Advantage Risk Management Newsletter, "The Quarter Hour", is reprinted with permission of the copyright holder through Aon Attorneys' Advantage.

This article is intended to inform the reader of potential liability exposures for attorneys. These exposures and their management vary among attorneys and over time. This article reflects general principles only and does not render legal advice. This article does not establish or recommend specific guidelines or standards for legal practice or its management, or for attorney liability exposures or their management. Readers should consult legal, financial, insurance and other advisors if they have specific concerns. Neither the Los Angeles County Bar Association, Aon and its affiliates, nor "The Quarter Hour" assumes any responsibility for how the information in this article is applied in practice or for the accuracy and completeness of this information.

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