If you make a mistake as a lawyer, is your instinct to pretend it hasn't happened or to own up and apologise? Your reaction could depend on your firm's culture, according to research by Catherine Gage O'Grady from the University of Arizona's James E. Rogers College of Law.
Her article, "A Behavioral Approach to Lawyer Mistake and Apology" will be published in the New England Law Review. It may be downloaded from the Social Sciences Research Network.
Professor O'Grady says mistakes can be caused by a lack of knowledge or an error of judgement. She defines a lawyering mistake as something a lawyer does (or doesn't do) that results in an actual or possible poor outcome for clients.
"Mistake is not intentional – the lawyer's decision to act or not may be intentional, but the poor outcome is unintentional."
Owning a mistake
Facing the consequences of messing up is unpleasant, to the extent that sometimes a lawyer may not realise or acknowledge they have made a mistake.
"At a most basic level, our unconscious avoidance of mistake realisation reflects our unwillingness to confront the 'sense of dread on realising that one has made an error'," Professor O'Grady says.
Lawyers place a lot of importance on their reputations and maintaining that reputation is a powerful motivator for decision-making and behaviour. "Thus, a lawyer may reasonably be unconsciously motivated to avoid recognising a mistake that amounts to a reputational blemish."
Facing the music can be especially daunting for lawyers at the beginning of their careers. Professor O'Grady says new lawyers can be fearful of the potential consequences of admitting to mistakes, unsure if their superiors will think them incompetent or if they will be sanctioned or even fired.
"Thus, the new attorney with only a shallow knowledge of actual consequences that might accompany a mistake, may fear that a mistake will be career defining, or even career ending, in a way that a more mature lawyer would not."
A 'winning' mentality
A desire to fit in to a 'winning' team, could also discourage mistake acknowledgement, says Professor O'Grady. She says firms that are structured hierarchically do not typically encourage mistake acknowledgement because "firm leaders often view errors as 'indicative of incompetence' leading people in organisation hierarchies to 'systemically suppress mistakes and deny responsibility'."
She says work teams developed within hierarchically organised firms present their own 'moral universe' which may make 'winning' the central mission of the team.
Spiralling out of control
Professor O'Grady says creating work environments that promote early recognition and acceptance of mistakes "serves to contain unfortunate situations, avoid one mistake building incrementally on another, discourage denial and cover-up, and facilitate learning for professional growth."
She cites the case of a lawyer in Arizona who went to extreme lengths to avoid admitting to her client that she'd missed a statute of limitations deadline.
"Instead of confessing error and compensating the client for her mistake, she invented a fake settlement, created false paperwork and a false court file, and was presumably intent of paying the client the 'settlement' money out of her own pocket," Professor O'Grady says.
The Disciplinary Commission of the Supreme Court of Arizona found that the attorney's misconduct was driven by a desire to protect herself from humiliation and a fear of losing her job.
Risk management vs quality control
Firms can put a risk management approach to dealing with mistakes, or a quality control model. Professor O'Grady says these models have very different goals and are likely to result in different organisational structures and cultures when it comes to mistakes.
She says an emphasis on risk management is designed to protect the law firm rather than the client, while a quality-control model has an eye on client services and seeks to design organisation structures and practices in a way that reduces errors and improves performance.
"Thus, applying values-orientation and quality control insights to the practice of law is likely to result in firms creating environments and cultures that insist on attorneys recognising, acknowledging, and ultimately learning from lawyering mistakes."
Creating an accepting culture
Firms need to create an environment of 'mistake acceptance', Professor O'Grady says, so lawyers understand it is safe to confess if they've made an error.
"When lawyers feel that they can discuss mistakes openly and confidentially with their supervising attorneys or with a trusted member of the firm, more mistake will be detected and ultimately reduced."
Some bigger firms in the US have an ethics counsel or an attorney who is available to confidentially talk through matters concerning ethics or mistakes. While smaller firms may not be able to provide a dedicated staff member, Professor O'Grady says firms of any size can provide a process or system for discussing ethical questions and exploring mistakes.
She cites a partner at a firm called Wiggin and Dana who regularly sent emails to his firm that he called 'wit and wisdom' messages.
"While some of the emails imparted ethical guidance on specific issues like conflict of interest, improvident emails, or writing engagement letters, many of them simply reminded attorneys that they should not attempt to fix mistakes or fix potential problems themselves, and the messages underscored that lawyering mistakes will be accepted by firm leaders, but an attorney staying quiet about a mistake will not be," Professor O'Grady says.
Professor O'Grady includes anecdotes from lawyers and how they felt about making mistakes. Here's what they had to say:
Why feedback is important
"When my senior colleague shared with me his view on my [mistakenly worded] email, I was at first visibly upset. But I later sent him an email thanking him for his feedback."
- Municipal court judge describing experience as a new attorney
"I submitted an opposition brief to a motion for summary judgement to the supervising partner a few days late. I did not think much of it – I was just relieved to have it off my plate. I became aware that I could have handled things differently when a few months later, the judge ruled in our client's favour and the partner sent around a congratulatory email to those who had a hand in the victory, but I was not on the list. I emailed the partner, a little tongue-in-cheek, asking why I didn't get any recognition for my effort. He then responded with a lengthy, scathing email detailing why I did not deserve any praise - mostly because I turned the motion assignment in late. I set up a lunch with the partner to sit down and discuss what happened, why he was upset, and what I could have done differently."
- Attorney with six years of experience at a large firm.
Reputational and career fears
"The supervising attorneys want to know if you're in over your head. But as a young lawyer, you don't know if that's lip service or if it will be held against you. I think it is held against young attorneys. Mistake make supervisors ask whether you are progressing as fast as you should."
- Attorney at a tax law consulting firm with 20 lawyers.
The benefits of apologising
"Apology to a client is a delicate balance. On the one hand, I want clients to have confidence in my competence. On the other hand, I want them to know that I am a human being, and that I am open to their suggestions about how their case should proceed. I do think there's a moment for apology to improve trust."
- Plantiffs' firm employment law attorney in seventh year of practice.
Different firms' approaches to mistakes
"At my second workplace, the incentive was strong not to disclose a mistake, but only if you were sure no one would find out about it."
- Business attorney with three and a half years of practice experience
"The environment at our firm is very encouraging when it comes to admitting mistake – actually, not disclosing a mistake is much more intimidating then disclosing one."
- Attorney at a large commercial litigation firm
"As a new attorney, I worked primarily with two supervising attorneys. One was terrifying whenever anything went wrong – for example a typo in a brief, or if we filled in the wrong county – so I would try to fix things without telling him because it was easier."
- Attorney at a firm with 12 attorneys.