Richard Nixon found out the hard way that the cover-up is worse than the crime. And that has proven to be the case with some frequency since the early ’70s. So what does the cover-up have to do with the practice of law?
Let’s face facts: mistakes will be made in your law firm (and by “mistake” I don’t mean a break-in at the Democratic National Committee office). Sometimes it’ll be your staff creating the problem, sometimes it’ll be the associates, and once in a while, it’ll be you.
Mistakes are inevitable. They can be minimized, but they can’t be eliminated.
Mistakes we make in our practices can be pretty darn big. Not “I left a clamp in his chest cavity” big, but pretty big. Our mistakes usually cost somebody a big bucket of money.
How do we manage the mistake?
Generally, we learn of the mistake before the client does. Of course, that’s not always the case, but it’s more likely than not that we’ll know first. Becoming aware of the mistake fills us with a sinking, dark, devastated feeling. It’s the kind of feeling you can relate to right now as you finish this sentence. We’ve all got a reservoir of that feeling, just waiting to overflow.
In those moments when few others know what we did, there’s a profound wish to roll back the clock to just before the error.
We get a bad case of the “if-onlys.” If only I’d filed it earlier instead of picking up the kid from day-care. If only I’d started earlier, I’d have had more time to get it right. If only I’d done more research I’d have spotted the issue.
We’d love to fix it. We desperately wish the situation would go away. We’d do anything to solve the problem. If only we could fix it right now so the client would never know.
It’s that hope that the client won’t find out that gets us into trouble, so don’t even think about it.
Surely we can hide just a little burglary, right?
It’s time to ‘fess up. It’s time to tell the client. Failing to tell the client quickly always makes it worse. Why? Because the cover-up is always worse than the crime.
I’ll admit to being tempted to cover things up. I figure I can fix it. I can make it inconsequential. I can take an alternative approach, work around the problem, and turn on my spin-master charm.
It’s that kind of thinking that turns a simple issue into a complicated mess. It’s that kind of thinking that turns a law license into a very expensive decoration, which the state soon requests that you return. It’s that kind of thinking that leads us down a path to doom.
How bad can it get? One former lawyer I know spent time in prison after forging a judge’s signature on fake court orders. That’s how bad it can get.
Just tell the client. The conversation is never as hard as we imagine. It’s painful for everyone, but the second you explain the situation, you’re starting down the path toward recovering from the damage done.
Your mistakes are bad … but wait, there’s more, and it can get so much worse for you.
Watch out for the cover-up aimed at you
It’s one thing when it’s you making the mistake, or contemplating a cover-up. It’s another when it’s one of your associates. Especially when the cover-up is not only directed at the client, it’s also directed at you. The associate wants to keep it a secret from everybody. They’re worried about the client being upset, plus they’re afraid of your reaction.
It’s one thing when you make a mistake, fantasize about a cover-up, debate putting your law license in jeopardy, risk prison, and then decide to come clean to the client and get things repaired.
It feels a whole lot worse when all of that is happening outside of your knowledge and control.
If you have associates, you can assume that they (like you) are making mistakes, contemplating a cover-up, and considering taking huge risks in order to fix the problem they created. Unfortunately, they may also be putting you in the line of fire. They might be putting your law license on the line. They may be playing Russian Roulette with your clients, your business, and your future.
And you may not realize you’re in jeopardy until you’ve already been destroyed. Think of your associates like you think of a ticking time bomb. They are simply waiting to blow up. If you don’t take preventive action, one day soon they will explode. There is a very high likelihood of you ending up in the spray of shrapnel.
Prophylactic measures minimize risk
How do you protect yourself from the associate who doesn’t want to admit to an error? How do you defend against the paralegal who missed the deadline and can’t find the courage to come clean?
Here are 6 things you should be doing:
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1. Great training
The best approach to protecting yourself is to eliminate mistakes. We all know it’s impossible, but that doesn’t mean it’s not worth trying. Mistakes can be minimized.
Most firms have an unwritten rule that basically requires all employees to train themselves. The draw back to this ‘system’ is that when employees ask questions, they become an annoyance. They get negative feedback from busy lawyers, so they stop asking questions of those with experience. They start asking one another. It’s the blind leading the blind.
How does that work out for us? We get mistakes.
A structured training system that involves online instruction, or weekly classes, or systematic feedback about work product, or some other approach, will pay off in reduced mistakes. It also pays off in employee growth, and is why many successful firms are successful.
A systematic approach reduces errors. When a system employs standardized forms, automatically filled fields, confirmation of accuracy, quality control reviews, and other efficient approaches, the error count drops. Why don’t we use systems for everything? Because we’re too busy fixing mistakes.
When you finally decide to buckle down and create automation, systems, review processes, and more, you’ll see the value of the investment and wish you’d done it sooner. Hopefully, next time a big mistake occurs you’ll be inspired to develop some systems. This work is a great way to fill the time while serving out a disciplinary suspension of your license. Or maybe it can be done with a pencil and pad while hanging out in a prison cell.
Resources in most firms are stretched to the limit. We need to trust our team to crank out the work. If we end up micromanaging every task, then we might as well do the work ourselves. Micromanaging is pointless.
But managing the team is not pointless. We need to be engaged with our employees. We need to review what we sign. We need to get more people involved in double-checking the final work product. We need to use technology to automate the process as much as possible. Quality control is not just for computer chip manufacturers. We are required by the rules of professional conduct to supervise the production of our work; doing so reduces the likelihood of mistakes.
Your team is more likely to break your heart, screw you over, and cost you your license in a low-trust environment. They’re not going to quickly come to you and enlist your help in repairing the situation if they don’t trust you, or if they know you don’t trust them. When they know you won’t scream, jump up and down, throw a stapler, and fire someone, they’re more likely to reveal their mistakes.
How do you create a trusting environment? You get to know one another. You do that systematically through daily check-ins, weekly one-to-ones, and actually caring about the other person’s life, family, and career.
It takes time and engagement. One day–probably right after you discover a disaster they’ve hidden in their desk drawer–you’ll wish that you’d built trust. I’d suggest doing it now, before things unravel.
5. Client engagement
Clients can help you identify mistakes before they happen. Nobody cares more about the matter than the client. They’re paying very close attention. Use that attention to your advantage.
Put your clients on duty, watching the process. Make sure they have instant access to all correspondence coming in or going out. Give them access to documents, while they’re in production as well as after they’re finalized. Bring them into the loop by granting them online access to a shared workspace. Make sure that workspace contains everything, and not simply those documents the team decides to share. There are very few reasons that justify keeping anything from the client. Give them instant access to all developments, simultaneous with the access you and your team have.
6. Conspiracy prevention
Granting the client access to their file keeps things open, honest, and transparent. It’s a solid preventive measure. It doesn’t solve the crime of mistakes, but it mostly prevents the cover-up. Not always, though.
This will sound crazy, but it’s true, and it happened to me.
Our receptionist had a close relationship with one of the associates in our firm. Some bad news arrived in the mail. I don’t remember whether it was an adverse ruling, or a letter from opposing counsel pointing out a mistake, or a motion pointing out the failure to meet a deadline. It was just something bad.
What happened? The receptionist pulled the letter out of the pile and gave it to the associate. It was never mailed to the client, it was never placed in the client file–it was hidden by the associate, who tried to fix the problem. What a mess.
We learned, the hard way, to clarify the severity of the offense of hiding a document. That was a rough learning curve for us. Without going into detail, it became clear in that incident that we had quite a few issues to resolve. We had to teach our team the necessity of keeping the client informed, of complying with the system, and of delivering bad news to clients even when it’s painful.
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Expose yourself (in a good way) before it’s too late
Everyone involved in every mistake wants to do his best. We know that’s true because we know we’ve made mistakes, and we know we didn’t let it happen on purpose. We were trying and we failed. Bad things happen. They happen to us and to our team. They are inevitable.
Making a mistake may end up being costly. It might result in a financial loss or a claim paid by our malpractice carrier.
But covering up the mistake turns a minor mess into something much worse. The dominoes start to fall, and there’s no telling where they’ll stop.
Take action now to minimize mistakes. Do the best you can do to have fewer of them going forward. That’s all you can do.
But do something different with respect to cover-ups. They aren’t inevitable. They aren’t something that we can’t control.
When mistakes happen, be forthcoming. Tell the client. Keep them informed. Expose the mistake promptly before temptation leads you down a disastrous path. Never put yourself in the position of having to answer the question why didn’t you tell me sooner?
The cover-up is dramatically worse than the crime and there must be zero tolerance for hiding mistakes. The cover-up part of the problem can be solved.