Tuesday, January 29, 2013

Helping Students To Reflect on Doing the Right Thing

I gave my students an assignment to reflect in writing on how they'd handle a situation in which they missed the statute of limitations on a claim.  In providing the scenario, I planted a typical rationalization by suggesting that, when this has happened in practice, some lawyers just tell the client the case isn't going forward because the case wasn't strong enough. 

Most recognized the rationalization might bring short-term relief but lead to long-term consequences.  A surprising number of students recognized that the result of lying to a client could, and likely would, affect how they viewed themselves as persons.  In other words, they connected acts such as this with diminishing self-esteem.  Most were honest enough to recognize the temptation for the easy way out but that, in the end, the best course was the hard one--to tell the client of his/her mistake.

The students all recognized that this would open them to malpractice liability.  I advised them that, though we hope such mistakes don't happen or are rare, the reason for having malpractice is to protect the client and the lawyer in just such situations.  Calling their malpractice insurance carrier to ensure coverage was something most of the students hadn't thought about. 

I'll now pass on to the students some studies that reflect that, when physicians admit their fault to patients, the incidence of malpractice suits is actually lower than if the doctor avoids doing so.   Would such a phenomenon occur with lawyers?  Some would say "no" because physicians are held in higher regard.  I'm not so sure.  Not that physicians are held in higher regard--I do think they are these days.  I'm just not sure whether the same phenomenon would occur if lawyers owned their mistakes and expressed true regret to clients.

Either way, I'm encouraged that most of my students seemed to appreciate the implications of lying to the client.  Some would say they were telling me what I wanted to hear, but I don't grade on that basis.  Plus, the degree to which the students' reflections appreciated the consequences not only to themselves but to others suggested the work was genuine.  Of course, when the student becomes a lawyer and is faced with temptations, what he or she says now may not be what she does then.  But engaging in the process of reflecting on such dilemmas, and how one would respond, very well could encourage the student-become-lawyer to do the right thing.

The next assignment: How to keep multiple "checks" in place to meet deadlines, especially statutes of limitation!

2 comments:

  1. As lawyers, the bedrock upon which we build our practice and professional reputation is the notion of "customer service." Of course, this does not mean that the customer is always right, nor does it mean we must tell the customer what they want to hear. Instead, we have a duty to our customers - or clients, to use the nom de guerre - to provide zealous representation.

    Is honesty part of said representation? I'd say it's not just part, it's pivotal; we cannot adequately serve as advocates without the trust of our clients. Granted, dishonesty does not break trust until discovered - a client doesn't know he's being lied to until he finds out - but the very potential of that break in trust is enough to destroy both the lawyer's professional credibility and his relationship with his clients. It is thus in the interest of the lawyer, from a professional and personal standpoint, to adopt the rule that "honesty is the best policy." Full disclosure, on both sides, nurtures the attorney-client relationship.

    In addressing the hypothetical of missing the statute of limitations, checks, checks of checks, and sometimes even checks of those are obviously important. However, sometimes life happens, the world gets in the way, terrorists act, car accidents happen, and phone calls in the middle of the night turn lives upside down. Lawyers are people too, and like all people, we screw up.

    It's easy, especially for a law student, to brush this off and say "well, then don't screw up." And that's true. The easiest way to not do A is to not do A. But sometimes, the A is inevitable. It is in that moment, that "darkest hour," that we must still zealously represent our client, even against our own interest.

    If, and for some, when, we fail our customers, they may be angry, and they may report us and seek compensation. But even in failure, the honest attorney still has the opportunity to put the interest of his clients ahead of their own.

    If that's not customer service, I don't know what is.

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  2. Presenting your students with a scenario that presents ethical/moral problem is an excellent way to make students think about the consequences of choices in the legal profession. Too often this task is left to a professional ethics course and a student does not think about the pitfalls of a particular practice area. As third year law student I have begun to thinking about various scenario's I would prefer to avoid as a lawyer. I have realized that by thinking about the situation beforehand, helps me make the right choice. Prior thought about the situation allows me think about what got me to the point where I am facing a ethical problem and being prepared in advance allows me to notify a client that I would be unable to assist in certain situations, or realize that I have pre-determined how I will likely handle the situation. As I have found in my own life, my response when I am knee deep in a problem is often not the ideal time to be making a choice that has an emotional aspect.

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