Disclosing the Lawyer's Own Errors

Rule 1.4 never mentions a lawyer's own mistakes, but three of its commands reach them. The lawyer must keep the client reasonably informed about the status of the matter, must promptly comply with reasonable requests for information, and must explain a matter to the extent reasonably necessary for the client to make informed decisions.¹ Clients rely on lawyers for exactly that information and explanation, so they can point to Rule 1.4 in arguing that a lawyer who learns that her own malpractice may harm them must say so.² The duty to disclose an error is therefore an application of Rule 1.4's general language, and an answer should ground it in that text.

The Restatement states the resulting duty in a single sentence:

If the lawyer's conduct of the matter gives the client a substantial malpractice claim against the lawyer, the lawyer must disclose that to the client.³

Its illustration is a lawyer who fails to file suit within the limitations period. That lawyer must tell the client, point out the possibility of a malpractice suit, and acknowledge the resulting conflict of interest, which may require the lawyer to withdraw.⁴

The illustration packs three obligations into one event, and each has its own reason. The lawyer discloses the error because a lapsed deadline changes what the client should do next: pursue a malpractice claim, challenge a dismissal on appeal, hire a replacement lawyer, or act at once while a deadline still allows a cure. A client cannot make any of those choices without knowing the mistake happened, and often only the lawyer knows. The lawyer points out the possible malpractice claim for the same reason. She acknowledges the conflict because her interest in avoiding liability now points away from the client's interest in knowing, which gives her a personal reason to stay silent and makes her a compromised adviser on how the client should respond.

Which Errors Trigger the Duty

The duty does not reach every slip. State ethics opinions conclude that lawyers must inform clients of significant or serious errors or omissions.⁵ That limit leaves minor errors undisclosed, and arguably also errors that do not affect the representation or that can be corrected easily with no adverse consequence to the client.⁶

A Colorado Bar Association opinion marks the serious end of the range: errors likely to prejudice a client's right or claim, such as losing a claim by missing a statutory limitations period, failing to serve a notice of claim within a statutory period, or losing the right of appeal by failing to file a timely notice of appeal.⁷ For those errors, the lawyer must promptly inform the client if a disinterested lawyer would conclude that an ethical duty to do so exists, because the client must decide whether to appeal the dismissal or pursue a malpractice action.⁸ The discussion adds one caution: the lawyer should have an opportunity to remedy the error before disclosing it to the client.⁹

The threshold follows from what disclosure is for. A slip that changes no right and no choice leaves the client nothing to decide, and a duty that swept in every typo would bury important notices under trivia. The disinterested-lawyer test counters the pull on a lawyer with exposure to see her own mistake as small. The opportunity to remedy has a narrow job: a cure that removes the prejudice may leave nothing serious to report, but a lawyer whose attempt fails, or who cannot cure at all, as with a lapsed limitations period, still owes the client the news.

That slip and a lapsed limitations period are both lawyer mistakes, but the first leaves the client's position exactly where it was, while the second extinguishes a claim and hands the client a decision about a malpractice action. Bar-exam stems often call both 'a mistake,' so ask one question of each: did the error change the client's rights or choices?

When the Lawyer Is Suspended

A suspended license triggers the same Rule 1.4 reasoning, although a suspension changes the lawyer's capacity and does not mar the file. A lawyer who keeps practicing during suspension commits several independent violations: unauthorized practice of law under Rule 5.5(a), arguably deceit under Rule 8.4(c) for falsely suggesting to clients that she remains a practitioner, and breach of Rule 1.16(a), which requires withdrawal when continuing would violate the Rules.¹⁰ Because Rule 1.4 requires the lawyer to keep the client informed about the status of the matter, she is also surely obliged to tell the client that she has been suspended and can no longer represent the client.¹¹

The reasoning mirrors the missed-deadline case. A client's reliance assumes the lawyer can act, and a suspension ends that capacity, so a client who hears nothing goes on depending on someone who cannot file, argue, or negotiate while deadlines keep running. A suspended lawyer who writes to each client when the suspension takes effect satisfies the duty to tell. One who keeps appearing in the file as though nothing has changed adds a false suggestion of her status to her silence. Disciplinary authorities also disfavor secretly maintaining a practice during suspension, for example by parking client matters with another lawyer on an understanding that they will return after reinstatement.¹²

What Silence Costs the Client

Silence about a client's rights and about a conflict costs the client first and the lawyer afterward. The opinion in Woodruff v. Tomlin faults a lawyer, Tomlin, for three failures: he did not advise his clients of their rights and of his conflict of interest, he did not advise Joan and her father that Joan should obtain separate counsel, and he did not withdraw when the conflict became very obvious to him.¹³ The opinion lays most of the damages to Joan, Patricia, and her father at the door of that misconduct and negligence.¹⁴

The same opinion describes Holcomb v. Steele, a Tennessee decision in which a firm represented both the driver and the passenger of a car in an action against the driver of another car. The firm neglected to tell the passenger that she could sue her own driver and even recommended that she accept a $400 settlement of her claim against the other driver. After she discharged the firm and hired a new lawyer, suit against both drivers produced compromise judgments of $3,000 against each.¹⁵ Neither case involves a missed deadline. Each shows what the Rule 1.4 duties guard against: a lawyer who holds back what the client needs to know, and a client who pays for the silence.