To err is human; to forgive, divine

Given the frequency and variety of decisions coming from the Solicitors Disciplinary Tribunal where an aspect of the case is about the behaviour of the legal professional in response to something having gone wrong, two matters are immediately clear: mistakes happen and admitting them can be difficult. Why might solicitors find it difficult to own up to their mistakes and what ethical considerations are at play?

What’s in a mistake?

Legal professionals may find dealing with mistakes difficult because some can prejudice a client’s position or result in losses for the client or the firm. A mistake could imply a lack of care or competence, which can cause embarrassment or feelings of guilt, shame or fear about the client’s position or about having to talk about the situation.

Key qualities for legal professionals, such as attention to detail, manifest as widespread perfectionism in the profession, which not only makes accepting mistakes more difficult, but is also linked to defensiveness, poor resilience, susceptibility to stress, anxiety, burnout and a tendency to unhealthy coping strategies.

The nature of legal practice produces pressures and simultaneously discourages practitioners from acknowledging them, in part due to the false notion that lawyers should be impervious to weakness.

The adversarial nature of many aspects of law means a mistake by one party is an opportunity that can be capitalised on for the benefit an opponent’s client, which dissuades disclosure or open discussion about mistakes.

Not all mistakes are born equal

Some solicitors may also fear the regulatory consequences of a mistake, but not all errors are equal and even if an act or omission does result in the breach of a regulatory rule, it is important not to lose sight of the fact a breach will only amount to professional misconduct if it is serious.

Another important point to keep in focus is the fact that the majority of mistakes result in little or no consequence to the client. Additionally, firms carry insurance precisely to protect clients (and themselves) from financial losses. However, that safety net can only be triggered once an error is acknowledged and the relevant people are told about it.

Delaying or failing to disclose a mistake can create related but separate problems that can be considerably more damaging than the original error, such as jeopardising insurance cover or giving rise to regulatory concerns about the honesty and integrity of the individual(s) party to the error.

Dealing with mistakes is not always straightforward but, rather than something to fear, can provide useful lessons and strengthen resilience.

Action on discovering a material mistake

The regulatory and ethical starting point for what to do next are the SRA Principles, alongside paragraph 1.4 of the Code of Conduct for Solicitors, RELs and RFLs and of the Code of Conduct for Firms, which states: “You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).”

This is an unqualified statement that arguably applies to regulated individuals and how they interact with all people at all times. However, the SRA does qualify the regulatory position in its guidance, saying that it is likely to take disciplinary action for lack of integrity “Where clients or third parties have been misled or allowed to be misled (except where this is a result of simple error that the regulated firm or individual has corrected as soon as they became aware of it).”

There can be no doubt about the degree of seriousness with which the regulator would consider an uncorrected error that resulted in clients or third parties having been misled or been allowed to be misled. The guidance continues: “If the circumstances of a case demonstrate dishonesty on the part of the regulated firm or individual, then we will take action for breach of SRA Principle 4 (Act with honesty). However, we may also take action for lack of integrity, particularly where allegations are contested and therefore pleaded in the alternative.”

In practical terms, once an error has been identified, the first step is to consider who to share it with (a supervisor, compliance colleagues, insurer, the client and regulator) and then share it, so that action to address the error can be taken, where possible.

Putting matters right

In its guidance on “putting maters right and own interest conflicts” , the SRA highlights paragraph 7.11 of the Code of Conduct for Solicitors, RELs and RFLs and paragraph 3.5 of the Code of Conduct for Firms, which requires that "You are honest and open with clients if things go wrong, and if a client suffers loss or harm as a result you put matters right (if possible) and explain fully and promptly what has happened and the likely impact…"

The guidance adds that, where the context permits, this applies to former as well as current clients. It also flags up that where material mistakes are made, you will need to “consider carefully whether you are able to advise on any remedial options, or continue to act for the client on any remedial steps, given your duty not to act where there is an own interest conflict or a significant risk of an own interest conflict.”

That careful consideration of the potential for an own interest conflict should be committed to writing in each case. Thought will need to be given to whether the client should be advised to obtain independent advice on the initial issue and the guidance gives other pointers on managing the process. The complexity of the process should not be underestimated, but a careful, considered and well-documented approach, can result in an acceptable outcome for all concerned.

Sorry seems to be the hardest word

Saying sorry when a mistake is made can be powerful but, according to research commissioned by the Legal Ombudsman, lawyers struggle to apologise sincerely to their clients. Whether apologising is seen as a weakness or bound up in fears about admitting liability is unclear, but it is clear that failing to apologise is likely to damage the client-solicitor relationship.

Turning back to the SRA guidance, another circumstance in which the regulator is likely to take disciplinary action for lack of integrity is “Where the regulated firm or individual has knowingly or recklessly caused harm or distress to another.” If solicitors are unconvinced about the purpose of saying sorry, this backdrop may make the force of an apology feel more real. That guidance may also make SRA-regulated professionals consider how they respond to errors, whether their own or someone else’s.

Mistakes can add complexity, but they are a fact of life and legal professionals must create environments for themselves, their colleagues and their clients that are free of fear and shame about mistakes and are instead full of understanding and forgiveness.

A version of this article was first published in the January 2021 edition of the Solicitor’s Journal (Volume 164 No.1)