Sunday, November 8, 2015

Attorney Disciplined, in part for Lying

Recently, the Kansas Supreme Court issues a couple of disciplinary rulings. They concern attorneys named Cline and Ehrlich. WorkCompCentral reported on the two in June 2015. The Court found it appropriate to suspend the two attorneys. There are occasions in which the Kansas Court has disbarred attorneys for "inexplicable incompetence," criminal offense convictions, and misappropriation of funds, among others. But these two were not in the disbarment category.

One attorney was suspended for lying to a client. Clients are entitled to know about the status of their case. The attorney has an obligation to keep the client reasonably apprised of how the case is going, where it is likely going, and when it will likely arrive at closure. 

In this instance in Kansas, the attorney was hired in 2009 to file for personal injury and workers' compensation benefits. The attorney did not serve the civil lawsuit on the defendants. This resulted in the court dismissing the lawsuit. Essentially, the attorney made a mistake. We are all human and mistakes will be an unavoidable part of that. In this instance, the attorney then compounded the mistake by not telling the client that the case had been dismissed. 

On the upside, the attorney did obtain some workers' compensation benefits for the client. However, the payment was slow in coming and the client called repeatedly. Counsel said that a hearing would be held to compel the payment of the obtained benefits. The client was told she need not attend. She presented anyway and learned that there was no hearing. The client believed she had been lied to and she complained. 

The attorney and the supervising attorney at the firm then did the right thing. Better late than never, they conceded to the client that she had been lied to, and that her civil case had been dismissed "two years ago." That cannot be easy to hear, nor is it likely to be easy to say. No one enjoys admitting that a mistake has been made. But, admitting it rarely gets easier as time goes on either. 

Much like the Florida system, in Kansas a Board considers complaints against attorneys and recommends discipline. In this case, the Board recommended that the supervising attorney "be censured and that (the attorney on the case) be suspended indefinitely." The Supreme Court accepted the recommendation and imposed those penalties. The article notes that unfortunately this is one of the two attorney's "third run-in with the attorney discipline system."

What can we glean from this situation? First, deadlines and procedures matter. They can detrimentally affect people with real problems. We have to keep the time limitations and procedural requirements in mind, it is what lawyers do. Second, mistakes are not like fine wine. They do not tend to improve with age. If we make mistakes, we would be well served to get them into the open and allow people to deal with them. Hearing it from us may be easier than finding out from someone else?

Mistakes are mistakes but being lied to is something else entirely. We have all been lied to, and few of us would say that we liked it. Some of us may be much more upset about the lie than we are about the underlying mistake. Elton John had a song about lies. Not one of his biggest hits, but a poetic rendition nonetheless. He notes that people lie for so many reasons about so many things. Among these:

Some lie about who they love
Some lie about the truth
Some lie to save their lives
Some lie about their youth

The refrain is "but I never lied to you." Perhaps honesty is the best policy? When one knows a liar, it may be hard to trust them, even if one were to believe that the liar will never lie to us?

We have experienced curious anecdotal instances in the Florida workers' compensation adjudication system. People appear at offices for hearings or mediations that they believe are on the schedule, but are not. We have people call offices to check on the status of orders regarding motions they think have been filed, but have not. Time is invested in helping people understand that there has been some misunderstanding. Hopefully these are the result of some miscommunication or misunderstanding. 

The online OJCC case docket has gone a long way to prevent misunderstandings. Anyone can look at the case filings in any case on www.fljcc.org. Just key the case number in the quick view box at the top of the page or use the case search tab, and find the case. Only registered users can see the actual motions and other pleadings, but anyone can see that something has or has not been filed. Anyone can see if an order has been entered, and can read the order. Free, easy access to information on case status.  

The online case docket is a powerful tool. Beyond pleadings and orders, it provides a great deal of other information, including the dates and times of any hearings. The parties to any case can monitor their own filings, and track whether orders have been entered, and verify dates and times for mediations and hearings. Keeping a client reasonably apprised has never been simpler. 

An interesting side-effect has been a tremendous decrease in the volume of telephone calls at our District offices. When one wonders whether a motion was filed, or an order entered, they are checking the website. There was a period when callers were asked if they had checked the web, we were educating on the existence of this information and how to access it. But that has slowed greatly, and the market has accepted the new paradigm and is leveraging it. 

At the end of the day, we have to remember that we are human and we will all make mistakes. We should strive not to, but the fact is that we still will despite our best efforts. We will never be able to escape the human condition and part of that will be embarrassment about mistakes and disappointment and perhaps frustration. This is all normal. When it happens, we will have to be honest about it though. That may not be easy, but it is the right thing to do for ourselves and the client. 

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