To Err is Human, to Apologize is Hard: the Role of Apologies in Lawyer Discipline

ARTICLES

To Err is Human, To Apologize is Hard: The Role of

Apologies in Lawyer Discipline

LESLIE C. LEVIN* AND JENNIFER K. ROBBENNOLT

†

ABSTRACT

The lawyer discipline system is often the only recourse for complainants

when lawyers misbehave. Yet it is also deeply unsatisfying. Most grievances are

dismissed and even when a sanction is imposed, the complainant receives no

monetary compensation. Lawyers rarely even apologize for the harm they

caused. Yet apologies can repair relationships and trust, decrease distress,

restore the victim’s standing, and aff‌irm important values. In this article, we

explore whether and how apologies might be more systematically incorporated

into the lawyer discipline system to address lawyer mistakes and misconduct.

We detail how apologies are currently sporadically used and evaluated by dis-

ciplinary authorities. We explore the psychological, educational, and signaling

benef‌its of apologies and the benef‌icial features of apologies for complainants,

lawyers, and disciplinary authorities. We then consider the various junctures at

which apologies could productively be incorporated into the discipline process

and the psychological and legal impediments to doing so. We conclude by con-

sidering how lawyers could be better educated about the benef‌its of making

meaningful apologies in the context of lawyer discipline and how they might be

trained to do so.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515

I. THE CURRENT USE OF APOLOGIES IN LAWYER DISCIPLINE. . . 520

* Hugh Macgill Professor of Law, University of Connecticut School of Law. Thanks go to Margaret

Tarkington for pointing out relevant literature and to the incomparable research librarians at the University of

Connecticut Law School. © 2021, Leslie C. Levin and Jennifer K. Robbennolt.

† Alice Curtis Campbell Professor of Law and Professor of Psychology, University of Illinois College of

Law.

513

A. APOLOGIES AS MITIGATION . . . . . . . . . . . . . . . . . . . . . . . 521

B. APOLOGIES AS PART OF DISPUTE RESOLUTION . . . . . . . . 524

C. APOLOGIES AS PART OF DIVERSION OR SANCTION . . . . . 526

D. APOLOGIES AS EVIDENCE OF REHABILITATION WHEN

SEEKING READMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . 527

II. WHY IS IT DIFFICULT FOR ATTORNEYS TO APOLOGIZE?. . . . . 528

III. SUCCESSFUL APOLOGIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534

A. GOOD APOLOGIES ACKNOWLEDGE MISCONDUCT,

ACKNOWLEDGE HARM, AND TAKE RESPONSIBILITY. . . . 536

B. GOOD APOLOGIES INCLUDE A PROMISE NOT TO REPEAT. 538

C. GOOD APOLOGIES REPAIR HARM . . . . . . . . . . . . . . . . . . . 539

D. SINCERITY AND REMORSE . . . . . . . . . . . . . . . . . . . . . . . . 540

IV. INCORPORATING APOLOGIES INTO THE LAWYER DISCIPLINE

PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547

A. EARLY DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . 547

B. DIVERSION CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 550

C. NEGOTIATED DISCIPLINE SANCTIONS . . . . . . . . . . . . . . . 553

D. DISCIPLINARY HEARINGS. . . . . . . . . . . . . . . . . . . . . . . . . 555

E. FORCED APOLOGY SANCTIONS . . . . . . . . . . . . . . . . . . . . 557

F. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563

514 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:513

INTRODUCTION

Lawyer discipline is often a last resort for aggrieved clients and can be a diff‌i-

cult and deeply unsatisfying process. Complainants can struggle to determine

where to f‌ile a complaint

1

and states may provide little explanation of what the

public can expect in the discipline process.

2

The vast majority of complaints are

dismissed without a hearing.

3

Even if the complaint proceeds, the complainant

can only participate as a witness. Complainants’ views do not receive much

weight in the imposition of sanctions.

4

They typically cannot appeal a hearing

panel’s determination or the suff‌iciency of a sanction.

5

Even when disciplinary

authorities f‌ind lawyer misconduct, clients rarely receive return of the legal fees

they paid. Nor does the discipline system provide compensation for the harm that

that the lawyer caused. Complainants rarely even receive an apology.

6

Most lawyer discipline complaints are brought against solo and very small f‌irm

lawyers

7

and allege neglect of client matters or failure to communicate.

8

These

are the lawyers who represent individuals and small businesses, often in personal

plight matters (e.g., bankruptcy, criminal, family, personal injury). Their clients

often have little leverage to force their lawyers to remedy their conduct. Clients

1. For example, in order to f‌ile a complaint in New York, the client must f‌irst determine in which of four ju-

dicial departments the lawyer was admitted to practice. In all states, they must determine whether to f‌ile the

complaint with the state bar or some other entity. In some states, the information about f‌iling a complaint and

the complaint form are only available in English. See, e.g., Attorney Discipline, KY. B. ASS’N, https://www.

kybar.org/page/attdis [https://perma.cc/H74G-4GC3] (last visited June 15, 2021); General Counsel, OKLA. B.

ASS’N, https://www.okbar.org/gc/complaint/ [https://perma.cc/XE95-QWEK] (last visited June 15, 2021). See

also Off‌ice of the Committee on Professional Conduct, ARK. JUDICIARY, https://www.arcourts.gov/

administration/professional-conduct [https://perma.cc/6VZ2-4B7S] (last visited June 15, 2021).

2. Some off‌icial websites do not explain the steps involved, what the complainant can hope to achieve, or

how long the process is likely to take. See, e.g., Frequently Asked Questions, S.C. JUD. BRANCH, https://www.

sccourts.org/discCounsel/faq.cfm [https://perma.cc/E4GV-9KN8] (last visited June 15, 2021); see also

Attorney Discipline, supra note 1.

3. See, e.g., Annual Report of 2019, ATT’Y REGISTRATION & DISCIPLINARY COMMISSION 22 (2020), https://

www.iardc.org/AnnualReport2019.pdf [https://perma.cc/V3T2-5AP3] [hereinafter ARDC Annual Report];

44th Annual Report, ATT’Y GRIEVANCE COMMISSION MD. 22 (2019), https://www.courts.state.md.us/sites/

default/f‌iles/import/attygrievance/docs/annualreport19.pdf [https://perma.cc/Z5T9-M7TC].

4. See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standard 9.4(e) (1992) (noting that complai-

nant’s recommendation as to sanction is not to be considered as either a mitigating or aggravating factor in the

determination).

5. See, e.g., Discipline Process Frequently Asked Questions, CONN. JUD. BRANCH STATEWIDE GRIEVANCE

COMMISSION, https://www.jud.ct.gov/SGC/faq_discipline.htm [https://perma.cc/Y5QM-JUCE] (last visited

June 15, 2021); Annual Report, June 1, 2019–May 31, 2020, ST. B. TEX. COMMISSION FOR LAW. DISCIPLINE 19

(2020), https://www.texasbar.com/AM/Template.cfm?Section=Grievance_and_Ethics_Information1&Template=/

CM/ContentDisplay.cfm&ContentID=41986 [https://perma.cc/2DMJ-WF5U].

6. E-mail from Mark Dubois, former Chief Disciplinary Counsel of Connecticut, to Leslie C. Levin (Oct.

23, 2020, 11:31 EDT).

7. Leslie C. Levin, The Ethical World of Solo and Small Law Firm Practitioners, 41 HOUS. L. REV. 309,

312–13 (2004).

8. See, e.g., ARDC Annual Report, supra note 3, at 21, 48; Regulation of the Legal Profession in Wisconsin,

Annual Report Fiscal Year 2019–2020, at 39, https://www.wicourts.gov/courts/off‌ices/docs/olr1920f‌iscal.pdf

[https://perma.cc/593V-UN7Q].

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