Malpractice Claims in a Diverse World

With the proposed changes to Rule 8.4 to make it misconduct for a lawyer to harass or discriminate against another based upon certain protected classes, it is worthwhile to take a look at diversity-related malpractice claims that are already occurring in the legal profession. As the malpractice insurance carrier for 25,600 Ontario lawyers (ours is mandatory for all lawyers in the jurisdiction), LAWPRO has seen that communication-related claims are equally if not more likely to occur where the failure to recognize cultural diversity plays a role. American malpractice carriers have advised us their experience is similar. The lessons learned here reflect a tension between respecting cultural norms and maintaining ethical standards. Some cultural norms, if embraced unreflectively, can interfere with your duties as attorneys—if this is happening to you, resist the urge to be pulled into the wrong orbit.

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Respect cultural norms but never sacrifice your practice principles.

Take the case where an attorney was retained to represent a father and daughter who were injured in a car accident. After the lawsuit was commenced, depositions completed, and experts retained, the parties proceeded to mediation. Along the way the attorney had sought instructions from the father only. In the context of the clients’ cultural background, this was not unusual. As the patriarch of the family, the father was used to making all the key decisions and led the attorney to believe that the father also spoke on behalf of his daughter. Up to this point, the daughter had not voiced any concerns. Unfortunately, the mediation was conducted the same way, and the matter was settled without the daughter’s input. Afterwards, the daughter refused to execute the settlement document. The defendants ultimately enforced the settlement, relying on the attorney’s ostensible authority. The daughter then brought a malpractice claim against the attorney for not seeking instructions from her.

While this claim arose because of an over-reliance on cultural norms, the failure to seek instructions from all clients is a common malpractice claim. Whether an attorney represents multiple family members in an estates litigation file, multiple companies in a corporate transaction, or multiple victims in a personal injury file, the attorney must seek instructions from every client on significant issues.

“It’s what we do back home.”

In a similar case of letting cultural practices trump good practice, an attorney was involved with loan transactions but failed to document them. The attorney and his clients belonged to a community where the repayment of a loan was done by relying on one’s word. The community had a history of conducting large transactions privately without the involvement of banks. Because transactions were moving in and out of the attorney’s trust account with no documentation as to where the monies came from, the attorney was investigated for fraud. It is no defense to say “it’s what we do back home.” Fortunately in this case no fraud was perpetrated. In these situations, risk can be minimized by educating all parties about the need to follow ethical requirements.

Finding (cold) comfort in a community.

A newly minted attorney in her 50s immigrated into the country and had a hard time landing a job with a law firm. She hung her own shingle, specializing in real estate law. A paralegal (a non-attorney licensed to provide limited legal services) from the same cultural and religious background befriended her, invited her to family gatherings, provided her with an office, and referred her real estate files. The attorney, who trusted the paralegal unconditionally, let the paralegal process all the transactions, including the real estate documents and effecting registrations. The transactions were fraudulent. The mortgage lenders brought malpractice claims against the attorney. Because she had allowed herself to be duped by the paralegal, the attorney was ultimately stripped of her ability to practice law.

Attorneys trained in foreign jurisdictions or from other countries may be more vulnerable to being preyed upon by fraudsters. Such attorneys may have difficulty obtaining jobs. They may end up as sole practitioners with little to no outside support. Without colleagues or mentors to guide them, these attorneys may inadvertently suffer marginalization due to cultural background, age or foreign legal training.

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It’s not funny.

An attorney was in court representing a client on a criminal matter. During a break, the attorney made a quip in relation to the client’s background. The client did not think it was funny. To make matters worse, the proceeding was recorded. The client discharged the attorney and commenced a claim alleging negligence and defamation. Inappropriate comments can lead to unhappy clients and malpractice claims.

Providing good client service.

In a diverse world, embracing different cultures requires an ability to connect with people different than ourselves. One way is to adapt, in however small a way, to another’s culture. It could mean something as simple as greeting your client differently with a softer handshake or a bow. Research on cognitive bias has shown that mirroring another person’s body language, tone of voice, and pace of speech can help you become more likeable to your audience.

But cultural competence is not just about changing your behaviour to match your client. As an attorney, a deep appreciation of a culture means understanding when to engage (a different way to say hello is probably okay) and when to hold firm (conducting a loan transaction on one’s word is probably not okay).

When a client behaves differently, ask yourself if there is a legitimate difference in opinion or if there is a deeper cultural difference. Ask your client about your client’s culture and educate yourself about what the norms are. And, importantly, consider the impact of the differences. If you are going to change your behaviour, how will doing so affect your ability to provide adequate legal services? While you want to win the client over, there is a balancing act between fitting in and holding true to your ethical standards.

Conclusion

Good client service may require you to act according to your client’s desires only so far as it is ethical to do so. If a client wants you to do something that is questionable, educate the client about how law is practiced in your jurisdiction. Find a way to adapt the cultural norm to your practice. Your ethical duties are paramount and cannot be sacrificed in the name of client service or winning more business.

About the Authors

Shelson Hu

Lorne Shelson (left) is a director and counsel and Ian Hu (right) is counsel for claims prevention with Lawyers Professional Indemnity Company (LawPRO) in Canada.

(Feature Image Credit: ShutterStock)

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