“Too err is human,” goes the proverb. “Humans: Even when we cross our t’s and dot our i’s, we still run into problems,” goes the Liberty Mutual commercial. “Ooh human,” goes the Human League song in the background, “born to make mistakes.”
Everyone recognizes that humans make mistakes, even that subset of humans who practice law. Today, in the first of a two-part Risk Tip on the subject of mistakes, we look at the question of, what happens after a lawyer makes a mistake? Last month, the Connecticut Bar Association helped tackle that question. At issue in that case was a lawyer who made a mistake in a filing for a client. Upon learning of the mistake, the lawyer promptly met with the client, explained the error, advised the client to confirm the explanation with another lawyer, and offered to reimburse fees caused by the error. With that, the client wanted the lawyer to continue, and the lawyer wanted to know if the prior mistake created a conflict precluding future work. The CBA’s Professional Ethics Committee answered, no. Given the post-mistake conduct, the opinion concluded: “We see no indication that your mistake has interfered with or will interfere with your professional judgment or that you will fail to pursue appropriate causes of action on your clients’ behalf.”
These steps made all the difference to the Ethics Committee, but you can tell they also made all the difference to the client who — after all — wanted to continue with the lawyer who made the error. Malcolm Gladwell noted the importance of the post-error efforts in his book, Blink. In it, he opined that most people who have been injured by a negligent doctor do not sue “because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care – and something else happens to them.” In Gladwell’s review of the data, what separated the doctors who made errors and got sued and the doctors who made errors and didn’t get sued, was the post-error actions. “What comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly.” Gladwell is not alone in noting this phenomenon in the medical field, but common sense suggests it has application in other professions as well.