Chapter 5: Ethics in Externship Practice
36 5.7 Making and Recovering from Mistakes
Gemma Smyth
Introduction
Making mistakes is part of life and it is certainly part of law practice, although very few lawyers publicly address this reality. Indeed, “It’s time to stop pretending that lawyers are perfect”. This topic is placed purposely in the chapter on “Ethics” both because the effects of not taking responsibility for mistakes can result in disciplinary action. However, this section gives some guidance on responding to mistakes to either prevent or minimize the negative consequences of mistakes.
Everyone makes mistakes, but in many professional disciplines there is a particular fear of making (or even speaking about) mistakes, and a de-emphasis on the importance of making mistakes to learning. Hence, the incentive to hide mistakes is significant. This is exactly the wrong thing to do as a student in a law office. This section describes how and when mistakes often occur in a legal workplace and ways to address mistakes in an externship.
Insurance & Causes of Complaints Against Lawyers
Like most professions, lawyers hold insurance (in Ontario, “LAWPRO” is the professional liability insurer). Students in an externship practice work under the license of their supervising lawyer. Any errors or omissions that occur typically have to be reported to the insurer. Avoiding claims in the first place is obviously the most prudent approach. LAWPRO releases data annually on the most common types of claims in various areas of law. By far the most common claims involve issues of communication between the client and the lawyer, including misunderstandings of client instructions, mismatched expectations between lawyer and client as to how often communication should occur, client misunderstanding of the implications of a resolution (especially in criminal matters), and associated issues.
Students can draw helpful guidance from this data including:
- Understanding the importance of regularly communicating with a client, even when nothing much is happening in their case,
- Clearly understanding why they are seeking your assistance in the first place and communicating this in a retainer. In other words, use high quality active communication skills,
- Ensuring that clients understand the full implications of any resolution of their matter, including the impact of one decision on other areas of their lives, and confirming your client’s instructions in writing,
- Documenting actions that have occurred in a file, and,
- Meeting deadlines, or planning for not meeting deadlines, is very important. (James Careless, “What to do when you screw up” (CBA National, 25 Jun 2019), online: https://www.nationalmagazine.ca/en-ca/articles/the-practice/young-lawyers/2019/what-to-do-when-you-screw-up.).
Anna Dorn, “Bad Lawyer: A Memoir of Law and Disorder” (New York: Hachette Books, 2021) – A Story of a Mistake
“One day I went to work at my internship and Fernando [the supervising lawyer] looked like he’d seen a ghost. I thought a family member had died…. I was scared to ask what was wrong, and luckily I didn’t have to.
“Anna,” he whisper-yelled. “Get in here.”
I nervously approached his office and, once inside, he quickly closed the door behind me. “I’ve been sanctioned by the Court of Appeal.” He continued to speak in a hushed tone.
I swallowed. A part of me was relieved. No one was dead.
“They say I misrepresented the law.” His eyes were wide with worry. He’d cited a case as supporting his argument when it actually held the opposite view… Put simply: He said a case said something it didn’t say.
I was shocked. Fernando was typically so meticulous… But I was also afraid. I didn’t know what would happen to him, whether he would be disbarred or what. Fernando’s job was his everything. Even though he often seemed to hate it, he didn’t appear to have much else going on in his life. I never heard him talk about boyfriends or going on dates. When he talked about his friends, they were mostly people from the office. “The office” made an appearance in nearly all of his sentences.
The situation was especially unfair given that the government misrepresented cases and facts all the time.
Also, the case Fernando misrepresented wasn’t a major case on which the appeal hinged. It was just a minor point cited in his reply brief… But we were representing criminals, which meant it was always an uphill battle… Beyond that, our clients were mostly poor people of color, and we all know how implicit bias works…
In a subsequent petition addressing the error, Fernando explained to the court that he wrote the brief at a time when his mom was very sick and he was preoccupied but that his mistake was innocent.
Finally, at a hearing where Fernando was interrogated by the entire panel – the court removed the sanctions.” (26-28)
Reflection Questions
- What does the above vignette suggest about the potential impact of making mistakes on a lawyer? What does the author mean when she writes: “The situation was especially unfair given that the government misrepresented cases and facts all the time”?
What should an externship student do if they make a mistake?
First, an externship student has to report the mistake to their supervising lawyer . Students might feel totally overwhelmed in doing so, but most mistakes are much easier to rectify than one might think. It is important to document what happened – write “what happened, how it happened, how you realized it happened, and how you think it could play out”. There are quite practical things that are typically done in response to a mistake, such as communicating with the client, writing to the court to amend a file, and so on. Lawyers do have reporting obligations when a mistake is made, so speak with your supervising lawyer about this as well. To be clear, the student is working under the license of their supervising lawyer. A mistake will have consequences for this person. The lawyer sometimes has to report an error to the insurer and take other preventative actions.
Other Supports
The Law Society of Ontario also hosts a Practice Management Helpline, but this helpline is only for lawyers and paralegals licensed by the LSO. Students may receive services through the Members Assistance Program.
Students should also seek out supports from non-judgmental colleagues or other networks. Many lawyers develop a network of colleagues who are a “safe space”.
Mistakes are also learning opportunities. It can be hard to treat them as such, especially when shame and regret often accompany making mistakes. Engaging in some critical self-reflection can lead help avoid the mistake in future. It might also lead to improvements in firm or clinic policies to prevent similar mistakes in future.
Reflection Questions
- Think back to a mistake you made in another context. How did you feel when you made the mistake? What was your resolution strategy at the time (even if it was doing nothing!)? What were the consequences? What lessons can you take from this experience and apply them to an externship setting?
- Why do you think there is so much shame associated with making mistakes in law practice?
