Well, of course, they can. Or at least that is the conceit I’m going to stick to in order to write this post about a lawyer’s obligation to talk to their client about mistakes and make it seem topical and culturally relevant.
By now, unless you live a very, very cloistered life you’ve at least heard about the unprecedented and crazy ending to this year’s Oscars. Many of you, like me, were watching it as the event unfolded with Bonnie and Clyde as the presenters for the Best Picture award to end the night, Clyde opening the envelope, noticing something wasn’t right, being reluctant to say anything, and then showing to Bonnie… who then blurted out La La Land. After that all of the folks associated with that film, made their way up to the stage and one of them began giving an acceptance speech.
Meanwhile, in the background on stage, people associated with the broadcast in some fashion are disseminating information somewhat frantically and, quickly, it falls upon one of the members of the La La Land team — incredibly graciously — to speak out and let the people responsible for the film Moonlight, that they have actually won Best Picture and not the film that was announced. It is then stated out loud by one of the La La Land contingent that this is not a joke and the card reflecting Moonlight as the Best Picture winner is revealed.
As the Moonlight folks make their way to the stage, Clyde then proceeds to explain what had happened, that he had noticed something was wrong, wasn’t trying to be funny, but then when he showed to Bonnie, Bonnie announced La La Land as the winner of Best Picture.
The folks on behalf of Moonlight then did get to make an acceptance speech and then the host of the program, Jimmy Kimmel, said words to the effect that “he knew he’d screw this show up” and that they wouldn’t have to invite him back.
While it was a pretty atrocious moment for all involved, it made for really amazing television. We have all now learned through media reports and from its own statement to the press that the most culpable in the creation of the mistake were folks with the accounting firm which tabulates the votes, keeps the results confidential, and distributes the votes. We’ve also now learned that a two-envelope system that actually makes some pretty good logistical sense with all the “stage right” and “stage left” of the theater created an entirely unnecessary risk in terms of handing over a wrong envelope.
But, and here I go with the conceit, this incredibly high-profile event also teaches several great lessons about mistakes that anyone can take to heart, including lawyers — ways to be more likely to avoid mistakes, ways to deal with mistakes once made, and lessons not limited to being about mistakes — but before laying those lessons out, it is important to stress something about when a client is negatively impacted by a lawyer’s mistake.
Under the most reasonable reading of the rules of ethics, a lawyer in any jurisdiction that has a rule analogous to ABA Model Rule 1.4 has an ethical obligation — when a mistake of real significance has been made by the lawyer in a matter –to communicate what has transpired to the client. Lawyers who don’t realize the ethical obligation though can have self-interested reasons for promptly telling a client about a mistake — to establish a clear time-frame for a statute of limitations on any claim against the lawyer by a client to begin running. This is a particularly prudent course to take in a jurisdiction like Tennessee where there is a relatively-short statutory period and where precedent establishes that the time for a suit is not tolled merely because the lawyer continues to represent the client. Thus, in addition to being a requirement of the rules, a lawyer who has committed an error in the handling of the case could most certainly see her way to figuring out that communicating about it quickly to the client, particularly if a simultaneous reasonable plan for correction can be communicated as well, is the right thing to do from a purely personal, selfish standpoint.
The lessons for lawyers? I think there are, at least, six of them that can be learned from Sunday night.
One. How to acknowledge a mistake: The accounting firm did it exactly the right way – complete candor, no hedging, and with a true sense of contrition. Here was the first statement made early the morning after the Oscars:
“We sincerely apologize to ‘Moonlight,’ ‘La La Land,’ Warren Beatty, Faye Dunaway, and Oscar viewers for the error that was made during the award announcement for best picture. The presenters had mistakenly been given the wrong category envelope and when discovered, was immediately corrected. We are currently investigating how this could have happened, and deeply regret that this occurred.
“We appreciate the grace with which the nominees, the Academy, ABC, and Jimmy Kimmel handled the situation.”
In subsequent media communications explaining the two-envelope procedure and who was where and did what, the United States Chairman of the accounting firm has continued to give accounts that are straight-forward and apologetic without attempting to deflect any blame. (Lawyers should remember though that you are going to need to make sure you have the client’s permission to speak publicly if that becomes necessary about your mistake because of the constraints of client confidentiality under Rule 1.6.)
Two. Don’t be the guy publicly throwing someone under the bus: Clyde. The whole “let me further interrupt these poor people from getting to have their moment by making sure everyone knows that as between me and Bonnie, Bonnie deserves the blame” is a bad look.
Three. Make sure you’ve actually made a mistake before saying you screwed up: It is particularly important for lawyers not to do what Jimmy Kimmel did and start taking responsibility for an error if you truly weren’t involved. Kimmel was surely trying to be gracious in the situation, but lawyers can be quick to describe things they’ve done in an overly critical way — and if they do so publicly or hastily in an email — those words can come back to haunt in a deposition even if the self-castigation was unwarranted.
Four. Trust your gut instincts: Clyde’s gut was actually correct. He was smart enough to know that “Emma Stone” is not the name of a movie, but he didn’t trust his instinct enough to make more control of the situation than he did by saying out loud that he had been given the wrong envelope. Had he done that, so much of this could have been avoided.
Five. Think before you act: Looking at you Bonnie.
Six. How to be more likely to avoid mistakes in the first place? Pay attention – the job of an attorney is important. This lesson comes about as the pieces have been better put together and it appears that the particular employee of the accounting firm that handed over the wrong envelope had pretty closely in time before that screw up been taking a photo of Emma Stone after she won Best Picture. And posting it to his Twitter. A Tweet which he subsequently deleted, but which others got a screen capture of and saved so it can still be viewed on the Internet.