Disclosing Your Own Errors

Disclosing Your Own Errors

A lawyer who lets a deadline pass has already failed the Rule 1.3 command to act with reasonable diligence and promptness, and a second problem follows at once: what the lawyer must now tell the client.¹ Ethics opinions answer that lawyers have a professional duty to disclose their own errors to clients, and they reach that answer by reading the communication rule and the conflict-of-interest rules together.² The duty is derived from those rules, and it is separate from the diligence breach it follows. Candor about a mistake does not undo the mistake.

The Restatement of the Law Governing Lawyers states the working test in a comment to § 20: "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 example is the 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 recognize the resulting conflict of interest, which may require the lawyer to withdraw.⁴ The example contains three separate obligations. The client must learn that the claim was lost, must learn that a claim against the lawyer may exist, and must learn that the lawyer's own interests now pull against the client's.

Each half of the duty has its own logic. The communication half exists because a client cannot protect against an error the client does not know about. A lapsed deadline leaves no visible trace, and a silent lawyer leaves the client waiting for a case that no longer exists. Disclosure gives the client real decisions to make, such as whether to appeal the dismissal or pursue a malpractice action.⁵ The lawyer who made the error also has the strongest reason to stay quiet, since speaking up invites a claim against that lawyer. A duty that depended on the lawyer's willingness to volunteer would fail in exactly the cases where it matters most.

The conflict half exists because disclosure changes the lawyer's position. Once the client learns that a claim may exist, the most valuable advice concerns whether to pursue the lawyer, and the lawyer cannot give that advice from a disinterested seat. A lawyer asked to evaluate a claim against himself is judging his own liability, which is why the Restatement example speaks of a conflict that may require withdrawal.⁶

The duty does not reach every slip. Disclosure earns its cost when it gives the client a decision to make or a right to protect, and a trivial error changes nothing in the client's position. A rule demanding a report of every such slip would fill the relationship with notices that protect no one. The duty is accordingly aimed at significant errors, and minor errors need not be reported.⁷ Lawyers arguably also need not disclose errors or omissions that do not affect the representation, or errors that are easily corrected with no adverse consequence for the client.⁸

At the other end of the spectrum the analysis reverses. One state ethics opinion places at that end the errors that cost a client a claim or a right, such as a limitations period that expires or a notice of appeal that is not filed on time.⁹ For an error of that kind, 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.¹⁰ The test asks how a disinterested lawyer would see the error because the lawyer who made it is the one most tempted to call it minor. An outside observer with no stake in the answer supplies the check.

The same opinion qualifies even this duty: the lawyer should be given an opportunity to remedy the error before disclosing it to the client.¹¹ That is one opinion's position and may not be followed everywhere, so an exam answer should present it as a recognized view and not as a universal rule. Its logic follows from what the duty targets, which is a substantial malpractice claim. An error cured in time leaves the client with no lost right and no claim to report. The window is narrow, though. The client's choices about an appeal or a malpractice action run on a clock, and a repair that fails or drags on returns the lawyer to the point where prompt disclosure is due.

Nadler, discussed earlier, shows what nondisclosure looks like. The lawyer there let the limitations period run and never told the client about the possibility of a malpractice claim, which is the very omission the Restatement example describes. The silence was only part of the conduct that drew discipline. It still connects this section to the earlier discussion of misleading clients. Silence about a significant error leaves the client with a false picture of the matter, and an affirmative false report about the matter's status adds a separate dishonesty violation. In both versions the lawyer's interest in avoiding liability has displaced the client's need for accurate information.