Disclosing Your Own Errors

A lawyer whose conduct of a matter gives the client a substantial malpractice claim must tell the client so. A comment to § 20 of the Restatement of the Law Governing Lawyers puts the rule in those words: the lawyer “must disclose that to the client.”¹ Its illustration is a lawyer who fails to file suit within the limitations period. That lawyer must inform the client, point out the possibility of a malpractice suit, and recognize the resulting conflict of interest, which may require the lawyer to withdraw.² The illustration raises three questions: where the duty stops, what the conflict demands, and what silence costs.

Duty and Its Limits

The duty rests on two sets of rules. Ethics opinions have relied on both the communication rule (MRPC 1.4) and the conflict-of-interest rules in concluding that lawyers must disclose their own errors to clients.³ The majority of jurisdictions that have decided the question, including Minnesota, New Jersey, New York, and Wisconsin, require the lawyer to notify the client promptly of both the failure to act and the possible malpractice claim.⁴

The duty exists to preserve the client’s choices. A client whose claim has been dismissed or lost must decide whether to appeal or to pursue a malpractice action,⁵ and the client cannot weigh those options without the facts. The lawyer is the one who has them.

Not every mistake triggers the duty. If only significant or serious errors trigger it, lawyers need not disclose minor ones, and arguably they need not disclose errors that leave the representation unaffected or that can be corrected easily with no adverse consequence to the client.⁶

The authorities arrange errors along a spectrum. At the serious end are errors that cost the client a right or a claim, such as a suit not filed within the limitations period or an appeal lost for want of a timely notice of appeal.⁷ 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 or to pursue a malpractice action.⁸ The lawyer should also be given an opportunity to remedy the error before disclosing it. Read together with the instruction to inform promptly, that opportunity is a short one.⁹

At the other end are errors that may never harm the client, because any harm is not reasonably foreseeable, the client’s right or claim suffers no prejudice, or the lawyer takes corrective measures reasonably likely to avoid prejudice. Missing a nonjurisdictional deadline, a potentially fruitful area of discovery, or a theory of liability or defense may cost a lawyer sleep without creating an ethical duty to disclose.¹⁰ As one commentator put it, “Unless there are steps that can be taken now to avoid the possibility of future harm, there is probably no immediate duty to disclose the mere possibility of lawyer error or omission.”¹¹ Between the two ends lie innumerable errors that fit neither description and must be analyzed one at a time.¹²

Whether the duty existed turns on the facts and circumstances the lawyer knew once the error came to light, and not on what hindsight later reveals. A later malpractice claim therefore does not show that the lawyer breached a duty to disclose, and the failure to disclose should not be treated as an independent claim against the lawyer.¹³

Applied to a lawyer who discovers that a limitations period has run, the same test points the other way. What that lawyer knows at that moment is a claim lost and a client who must decide how to respond.

Conflict and Withdrawal

An error that exposes the lawyer to a malpractice claim also gives the lawyer a personal interest that may diverge from the client’s, which is the conflict of interest the Restatement’s illustration mentions.¹⁵ After discovering an error or omission that constitutes malpractice, a lawyer must therefore decide whether continued representation is proper with the client’s informed consent.¹⁶ Depending on the nature and status of the representation, the conflict may be one to which the client cannot validly consent, and the lawyer must then withdraw.¹⁷ At withdrawal, the lawyer could inform the client that seeking independent counsel is advisable.¹⁸

When the lawyer believes the conflict can be cured by consent, the safest course is to require the client to consult independent counsel about giving it. At a minimum, the lawyer should advise the client in writing that consulting independent counsel is advisable.¹⁹

Concealment and the Insurer

The duty to disclose is a professional one,²¹ and a lawyer who engages in a cover-up involving misrepresentation could face suspension or disbarment.²²

A malpractice suit makes the silence more costly. The plaintiff can use the failure to disclose to portray the lawyer as a scoundrel who took advantage of a client who relied on the lawyer to be honest and candid and to put the client’s interests first.²³ That portrait can damage jurors’ perceptions of the lawyer and the lawyer’s conduct, and it may lead them to doubt the lawyer’s credibility generally, even on accurate accounts of the facts.²⁴

A lawyer who plans to disclose may consult the malpractice insurer. If consulted, the insurer may retain defense counsel to help the lawyer fulfill ethical obligations to clients.²⁵ The insurer still has interests of its own. The interests of both the lawyer and the insurer may seriously conflict with the client’s, and until the attorney-client relationship ends the lawyer owes the client demanding fiduciary duties, under which the client’s interests come first.²⁶

Because the majority of jurisdictions require prompt notice of both the failure to act and the possible malpractice claim, an answer that tracks the majority rule is the safest one when an exam stem names no local approach.²⁷ The lawyer should add the advisability of independent counsel, as the conflict rules suggest.²⁸