How NOT to Handle a Mistake

It’s something that all of us practicing lawyers dread: we file a case, and it’s lost or somehow misplaced at the court, resulting in a missed statute of limitations. So if you find yourself in this situation, do you (a) try to appeal the dismissal of the case, arguing that the clerk erred; (b) ‘fess up to the client and offer to make her whole; (c) seek advice from a trusted colleague on what to do or (d) conceal the mistake and present a “settlement” to the client, purportedly from the defendant.

The lawyer who was the subject of the disciplinary action described by Mike Frisch in this post at the Legal Profession Blog , chose “c” and “d,” and received a 2 year suspension. As I’ll discuss, I think that’s too harsh (and for that reason, I’m not using the lawyers’ name in this post, to avoid caching this event in the search engines). At the same time, the decision teaches some great lessons for solos, which I’ll summarize at the end of this post.

According to the decision (embedded in Frisch’s post), a lawyer (apparently a solo) agreed to represent a client in a small personal injury matter, valued at around $10k (the policy limit). She filed the complaint the same day as she filed a complaint in another case. The clerk erroneously assigned the same docket number to both complaints, and as a result, one of them was apparently never deemed filed. When the lawyer discovered the error, the statute of limitations had passed (it’s not clear from the decision why the lawyer never tried to correct the mistake or otherwise challenge the error).

The lawyer informed the defendants that the suit was finished, since the SOL had passed without the lodging of the complaint. The lawyer never informed her client of the dismissal. Instead, she decided to simply make the client whole by paying her what she would have received if she had gotten the $10 k settlement expected. Prior to making the proposal, the lawyer consulted with a colleague, a partner at a prominent DC law firm, about the ethics of not disclosing the dismissal to the client. The partner advised that not disclosing the dismissal would not violate applicable ethics rules, so the lawyer proceeded with her plan. She extended a “fake” settlement to the client, indicating the client’s portion. Subsequently, the case reached the bar (though it’s not clear how, because the client insisted that she was happy with the attorney and would hire her again). The DC Board originally recommended a 30 day suspension, but the court upped it to a two year suspension. And the lawyer who provided the advice received 60 days for “aiding and abetting” in the violation.

The court ruling raises many questions in my mind. I’m not sure how any practicing attorney, particularly one at a top DC law firm, could ever believe that it’s alright not to tell a client that her case was dismissed. But sheer stupidity requires correction or a humiliating public reprimand (assuming it’s the first time it happened), not suspension. As for the lawyer who didn’t reveal the dismissal, no doubt she erred big time. But it seems to me that she simply panicked. The case was dismissed, she feared embarrassment and felt that she could make it right another way. And she consulted with a colleague (though again, it’s not clear why she didn’t call the bar hotline). The lawyer wasn’t extremely careless (the dismissal resulted from a quirky error), and I don’t think she acted with malice. And the client got what she’d have gotten if the case had been properly filed, or even if she’d brought a malpractice action. Yes, what the lawyer did was wrong – but not to the tune of a two year suspension (again, assuming it’s a first time offense), particularly, when her own client would have rehired her. I’d have given the lawyer an absolute maximum 60 day suspension, combined with plenty of CLE, and maybe train her to work at a bar hotline, to provide the kind of sound advice to other lawyers that she couldn’t find in her case.

Still, some good can come out of this case if other lawyers can learn from it. Here are the lessons that I glean – please share your own ideas below:

1. DON’T HIDE A MISTAKE:
I’ve written about handling mistakes before, and I can’t emphasize it enough. When you make a mistake, admit it, offer to fix it and move on. Hiding it will only make it fester into something far worse than it was originally. Here, if the lawyer had simply told the client the case was dismissed and offered to make amends, that probably would have been the end of the matter.

2. Keep a list of go-to resources for discussing ethics matters:
Don’t try to mull over an ethics issue on your own – you’re too close to the issue, and as a lawyer, you’ll most likely wind up rationalizing the problem away. Compile a list of “go to” resources to help you with your ethics matter, and gather a couple of opinions, rather than relying on one. In my case, I always call the DC Bar hotline for ethics questions that arise in DC. I’ll also post my question on Solosez (if you think lawyers aren’t ethical, you ought to check out this list – I have never seen a group of more conscientious and honest lawyers committed to helping other lawyers do the right thing) and a smaller, more close-knit list. Finally, I’ll consult with a colleague of mine who defends disciplinary actions as part of his practice. Who are your “go to” people for ethics questions?

3. Don’t go before a bar hearing pro se?
In reading the decision, I noticed that both the solo and the biglaw attorney represented themselves pro se before the bar, something that I couldn’t understand. Most legal malpractice insurance covers discipinary proceedings – was coverage denied because the lawyers didn’t provide notice of the triggering event (which after all, they’d concealed?) Still, couldn’t the lawyers have afforded to pay a lawyer to represent them before the disciplinary proceeding? I think that both the DC Board, and more importantly, the Court of Appeals give much more credibility to lawyers’ defenses to a disciplinary action when they’re represented by other counsel and not pro se.

Now it’s your turn. Do you agree with the suspension, (I know, I’m a softie when it comes to lawyer discipline!) and what can other lawyers learn from this case.