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SORRY SEEMS TO BE THE HARDEST WORD - FOR LAWYERS. What happens when lawyers make mistakes?

Over the past two days, there has been a lot of discussion on social media about how law firms, and indeed the legal profession, should respond when one of their lawyers has made a mistake.


The background to the current discussion is the case of a junior solicitor (lawyer), called Claire Matthews, who left confidential documents, in relation to a data protection case she was working on, in a locked briefcase on a train. Having done so, she then lied to colleagues for a week about it. Last year, she was struck off [1] by her professional body. The reason for her being struck off was because she lied – an issue of dishonesty.


The reason for the matter being back in the spotlight [2] is because earlier this week (w/c 22nd March 2021), the English High Court (Divisional Court) quashed [3] the decision of the Solicitor’s Disciplinary Tribunal (the SDT) and directed that there should be a rehearing. Essentially, the SDT must now consider the impact of her mental health on her actions – in particular, in relation to how she responded after leaving the briefcase of documents on the train.


On one level, this seems very straightforward, if you apply strictly logical, thesis/antithesis/synthesis-type reasoning. A professional lawyer must be honest. Ms Matthews was not honest. Therefore, she must be struck off. However, even what seems to be a simple situation like this is far more complex than that. The focus now very much seems to be on the question, ‘Why did she lie?’ And that seems to have opened up a can of worms [4] for the legal profession.


It is hard to know where to begin with the complexities. The main actors in this situation are clearly Ms Matthews, the legal firm she was working for, and her regulatory body, the ‘Solicitors Regulation Authority’ (SRA). However, there are others, including the SDT, the client whose documents were lost (ironically, in this case, they belonged to the SRA), and the wider legal profession.


Let’s begin with a truth: ‘everybody makes mistakes’. Practising lawyers are not infallible. However – and this is part of the complexity of this situation – they often believe they are, and they are often expected to be. The legal profession attracts intelligent and ambitious people. The legal profession expects the highest possible standards from people in the profession. But here is the capital T truth: lawyers are ‘people’, and not machines. For many reasons, they will sometimes make mistakes.


And, when they do, there are often consequences. Lawyers are not simply employees, whose mistakes affect the firm they work for. Those mistakes affect clients who instruct the firm. Those clients, if dissatisfied, can affect the reputation of the firm. Suddenly, we have a complex chain of potentially ‘affected parties’. The legal profession can be a cut-throat [5] world, and an unforgiving one. This, of itself, can – and will – place intense pressure on everyone in it, and perhaps more so on junior lawyers who are trying to survive and thrive in that world.


Looking objectively, one can say that the biggest ‘mistake’ that Ms Matthews made was not to leave the documents, by accident, on the train but lying about the situation. This moved the situation from being one of ‘human error’ to ‘dishonesty’ – the matter for which she was actually struck off originally.


If we move from cold, Socratic logic and drill down into the human aspects of this situation, we begin to see a slightly different picture. It must be stressed, lying cannot be acceptable within the legal profession. But one of the interesting, and in many ways encouraging, aspects of the Divisional Court’s ruling is that it has opened a discussion which must be had within the legal profession. To put it in a nutshell [6], is the legal profession an environment in which mistakes of all kinds can be appropriately admitted and dealt with reasonably by all involved in their consequences?


Again, this is a very complex question. From the perspective of the person who made the mistake, it may be that they are simply dishonest and will lie about it, whatever. Of course, mistakes can be small or large, with varying possible consequences. If the individual, perhaps wrongly, fears that the mistake they have made will lead to them losing their job, their reputation, their livelihood, and so on, they may decide to try to cover it up. [7] They may do this, for example, because they hope the mistake can, somehow, be put right. If you leave a briefcase on a train, perhaps you hope that someone will hand it in and everything will be fine. So, what may start as a lie, told in panic, can quickly snowball [8] into something very serious.


One of the social media discussion points over the past two days or so has been whether the legal profession, including individual law firms, are doing enough to ensure that junior lawyers (indeed, all lawyers) feel able to admit a mistake at the earliest possible stage. And, if they are not, what changes to the culture of the legal profession or law firm can be made to help that to happen? Why, exactly, could Ms Matthews not speak to someone in her firm and say, ‘Look, I’m really sorry but something terrible has happened. I’ve left a briefcase of confidential documents on the train’?


Of course, the reasons why she did not, or did not feel she could, do this may be complex. As we know, the SRA will now need to look at any mental health issues which may have played a part in what she did and said.


One thing this case should surely do is make every law firm stop and ask itself exactly how it can put in place procedures and processes to make its lawyers as comfortable as possible to admit a mistake at the earliest possible stage. Common sense dictates that mistakes which are discovered and disclosed early are usually ones that can be put right more easily. And, if a firm does have those procedures and processes in place, to ask itself how they can be improved and built on.


Anyone who has worked in the legal profession will know how pressurised and unforgiving it can sometimes be, and how this kind of working environment can impact the mental health of anyone. As stated earlier, lawyers are just people. They have lives, loves, circumstances, and a range of pressures outside of the legal profession which those inside it will probably never know about. It will certainly help if that realisation is accepted and factored in when seeing how things can be improved on every level, including the admission of mistakes and errors in a professional context. Being professional does not exclude kindness, understanding, and creating an environment where professional people can feel more able to say, ‘Look, I’ve made a mistake.’


[If you want to read more about this case, you will find an article here:


https://www.legalfutures.co.uk/latest-news/solicitor-who-lied-about-lost-documents-wins-sdt-rehearing


You will also find an interesting and informative article on this topic, including contributions by practising lawyers, on the Civil Litigation Brief blog, here:


https://www.civillitigationbrief.com/2021/03/24/making-mistakes-as-a-young-lawyer-helpful-guidance-with-a-little-help-from-my-friends/


It contains some very useful language, too!]



Text Notes:

[1] If you are ‘struck off’, it means that you can no longer practise as a solicitor. Lawyers have professional standards that they must meet – such as honesty – and if they do not meet these standards, they may be struck off.

[2] ‘to be in the spotlight’ – to be a focus of attention.

[3] ‘to quash’ means make invalid, or overturn a decision.

[4] ‘to open a can of worms’ means to do something that will create many further problems which need to be considered and resolved.

[5] ‘cut-throat’ – intensely competitive.

[6] ‘to put something in a nutshell’ means to summarise it.

[7] ‘to cover something up’ means to hide it.

[8] ‘to snowball’ means to get bigger by more and more of something being added to it.


© Cambridge Legal English Academy 2021



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