In bar disciplinary proceedings, the word “mistake” is often used either to explain, describe, or defend against, a charge of alleged unethical behavior. But is it unethical for an attorney to make an “honest mistake”? Ethical guidance on what seems to be a straightforward question is mixed. The New Jersey Office of Attorney Ethics, for example, states:
A mistake does not necessarily constitute unethical conduct. If a mistake causes a loss, the client may be able to recover the loss in a civil suit against the lawyer for money damages. But a simple mistake or error in judgment by itself is not unethical conduct.
Unfortunately, this statement raises more questions than answers. Indeed, that a “mistake” is not “necessarily” unethical implies that a “mistake” could, in fact, be unethical. The further attempt to classify a mistake as “simple” begs the question – what is a “simple” ethical mistake? And from whose vantage point. See our post “To err is Human–But is it Unethical” (here).
The word “mistake” and common variations (“simple mistake”, “honest mistake” or “stupid mistake”) arise with some degree of frequency in matters of attorney ethics and discipline. In the ethics and discipline context, the word “mistake” is typically used as a euphemism for more legally charged terms of art, such as negligence or incompetence.
No matter how one wants to characterize a lawyer’s error, the fact of the matter is that characterizing conduct as a “mistake”does not mean the conduct is free from the reach of disciplinary authorities. At least several ethics rules may be implicated by counsel’s “mistake.”
The very first rule of ethics is the duty of a lawyer to “provide competent representation to a client.” See ABA Model Rule 1.1; USPTO Ethics Rule 37 C.F.R. Section 11.101. The rules provide that “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” While it is not necessarily obvious from the plain language of the rule itself, one could see that a “mistake” could fall within the scope of Model Rule 1.1 if the “mistake” was caused by an attorney’s lack of preparation, training, thoroughness or experience. As one ethics authority has noted, “Reasonable lawyers can make reasonable mistakes. The lawyer is not competent when the mistake is not reasonable, and she is competent if the mistake is reasonable.” R. Rotunda and J. Dzienkowski, Legal Ethics The Lawyer’s Deskbook on Professional Responsibility at 90(ABA Ctr. Prof. Resp. 2013).
One example of a “mistake” that can arise in the course of patent or trademark prosecution is the docketing error. As we reported in our post (here), an IP lawyer was suspended from the USPTO for five year in part because of his use of an antiquated docketing system. The result was that between 2005 and 2010, maintenance fees were not paid, leading to Continue reading