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

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 disciplinary 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 considering 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.

Keywords: Legal Profession, Law and Psychology, Law and Society, Regulation