X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Lawyers get sued a lot, and the general public apparently likes it when it happens. For almost 10 years, our firm has represented clients who sue their lawyers. Oftentimes, when nonlawyers ask me what type of law I practice, I tell them we are among a small group of lawyers who make their living suing other lawyers for malpractice. I kid you not, about 75 percent of the time, the immediate response is, “Let me shake your hand,” along with a huge smile and sometimes even a hug. This common reaction recently led me to ask two questions. 1. How does a lawyer end up in a situation where he or she has committed intentional wrongdoing against a client, as opposed to merely negligent conduct? 2. How does a lawyer avoid such situations? In response to the first question, many acts of intentional wrongdoing started out as simple acts of innocent negligence, such as a missed deadline, that evolved into a lawyer’s subsequent efforts to hide such a mistake from the client. It is this process of hiding negligence — the intentional misconduct — that placed the lawyer in a substantially worse situation than he or she originally was in. Good lawyers must avoid this almost inherent human temptation to cover-up mistakes. In response to the second question — how to avoid these situations — it requires, at a minimum, reviewing and adhering to the Texas Lawyer’s Creed, a document that some lawyers have not even read, let alone followed. In fact, failure to adhere to the creed is one explanation as to why many members of the general public dislike lawyers. All lawyers make mistakes. Some make more than others. What is amazing is how lawyers react to their errors. It is these reactions that can get lawyers into serious trouble, including greater exposure to a civil suit or even criminal prosecution. For example, let’s say that a lawyer forgets to provide an expert report in a medical-malpractice case, and the case is dismissed. The dissatisfied client requests her file back so that she can meet with a legal-malpractice attorney to see if she has a case against the med-mal lawyer. Unbeknownst to the med-mal lawyer, his paralegal provides to the client a copy of the entire file, which includes the med-mal lawyer’s handwritten notes. The legal-malpractice lawyer takes the case and demands another complete copy of the file. Before turning a copy over, the med-mal lawyer re-writes his handwritten notes to falsely document that the client advised the lawyer not to hire an expert and instead to let the case be dismissed. The med-mal lawyer produces the “new” handwritten notes not knowing the legal-mal lawyer has a copy of the original notes. In an attempt to cover his tracks, the med-mal lawyer has just committed a felony. And, once the legal-malpractice lawyer exposes the med-mal attorney’s cover-up, the legal-malpractice case settles quickly and for a much larger amount than it otherwise would have. This begins to sound similar to Martha Stewart’s situation, in which she apparently acted on insider information and, in a panic, tried to cover up her conduct, thereby creating a more serious situation for herself — being charged and convicted for obstruction of justice. Here’s another example. An associate at a firm misses several critical deadlines in a litigation case, which leads to a judgment being entered against his client. The judge, in the order addressing such missed deadlines, admonishes the lawyer and his firm for missing the deadlines. Embarrassed and afraid, the associate does not disclose the order to the client or his supervising lawyer at the firm. The client hires a legal-malpractice attorney, who obtains a copy of the case file at the courthouse. Much to the surprise of the client and the defendant firm, the judge’s order is uncovered. Again, the legal-mal case settles quickly and for a larger amount than it otherwise would have. There also is a tremendous amount of social/peer pressure for lawyers to win at all costs, bill lots of hours and “never let them see you sweat,” to which young lawyers may be most susceptible. It is in this context that lawyers can be and certainly are pushed to their moral limits. This contentious environment often unintentionally encourages lawyers to hide their mistakes. One form of relief is a strict adherence to a document that some lawyers don’t read, let alone follow: the Texas Lawyer’s Creed. THE CREED In 1989, the Texas Supreme Court adopted the Texas Disciplinary Rules of Professional Conduct and the Texas Lawyer’s Creed. While the preamble to the disciplinary rules discusses the duties a lawyer owes to the general public, as does the creed, the creed is more strongly worded. Often lawyers who are sued by their clients overlook the creed. Some lawyers do not provide a copy of the creed to their clients — as required by the creed. When I have a deposed a defendant-attorney and asked when he or she last read the creed, often the lawyer greets this question with a long pause … a pause that should not be there. Lawyers are not only required to provide a copy of the creed to their clients “when undertaking representation,” but lawyers must also be committed to the creed “for no other reason that it is right” to do so, as stated in the creed. It is easy for many good lawyers not only to find they’ve committed negligence but to feel pressure from various sources (e.g. supervising lawyers) not to disclose such mistakes to the client. The creed is a doctrine that, read often and adhered to, will aid such lawyers after they’ve made mistakes but before they’ve undertaken any effort to cover up or ignore them. In the creed, lawyers will find words such as entrusted, dignity, integrity, highest principles of professionalism, pro bono, allegiance, skill, fairness, courtesy, candor, cooperation and respect. However, these words unfortunately don’t describe all lawyers or possibly even the general legal environment as a whole. The general public feels that lawyers are only one notch higher on the evolutionary charts than used-car salesmen; it is the general public’s memories and/or experiences as well as negative images portrayed in highly publicized cases that drive the public’s general opinions of lawyers. The legal profession and society as a whole have become so driven by dollars, combativeness and pride that public perception — and occurrences of intentional wrongdoing against clients — will only continue to increase unless lawyers, as people, figure out a way to get back on stable moral ground. After all, lawyers are obligated to follow rules of ethics; Webster’s Dictionary defines ethics as “a set of moral principles or values.” Ultimately, the moral ground needed to substantially reduce intentional wrongdoing by attorneys and the general public’s negative perception of lawyers is found in places other than the creed — the Bible, the Torah, etc. But adherence to the creed certainly is a good starting point. Lawyers can help themselves avoid the temptation to commit intentional wrongdoing, especially in instances of an innocent mistake, by reading and adhering to the mandates of the creed. They should also regularly evaluate their own conduct and the conduct of those around them, and how such conduct compares to that contemplated by the creed. To take it one step further, lawyers should have an accountability partner to whom they regularly report regarding how their respective conduct compares with the creed. These types of evaluations, done individually or with someone else, can certainly help avoid problem situations, as can working with people who live up to such ideals. In addition, out of the 15 hours of continuing legal education required each year, 10 of them should be required to be ethics-related — instead of just three, which is 20 percent. After all, do we really believe that a good law practice only needs to be 20 percent ethical? Alternatively, firms could and should require their lawyers to earn an additional 10 hours a year in CLE ethics credit. Everyone makes mistakes. But lawyers owe it to clients and themselves to do their best to avoid errors as well as confront and deal with them in honest and forthright ways. Brian Becker is a partner in Dallas’ Becker & Melvin. The firm focuses on pursuing claims against lawyers. The Texas Lawyer’s Creed can be found at www.txethics.org .

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.