Does a lawyer have to tell a client about the lawyer's own mistake, and does that duty reach former clients?

Plain-English summary

The opinion addresses whether a lawyer must tell a client about the lawyer's own mistake, and whether that duty extends to former clients. It grounds the duty to a current client in Model Rule 1.4: "Model Rule of Professional Conduct 1.4 requires a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client's representation," and "a lawyer may not withhold information from a client to serve the lawyer's own interests or convenience."

The opinion defines materiality objectively and along a continuum. "An error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice." The opinion notes the standard is broader than a colorable malpractice claim, because an error can impair a representation even if the client could not prove every malpractice element. Errors range from minor, easily corrected ones that carry no risk of harm to serious ones, like missing a limitations deadline, that plainly require disclosure.

On timing and manner, the opinion says "a lawyer must notify a current client of a material error promptly under the circumstances," a fact-specific inquiry that becomes more urgent where delay could harm the client. The lawyer may first consult firm counsel, another lawyer, or a malpractice insurer (Rule 1.6(b)(4) permits revealing information to get advice on compliance with the Rules) and, where reasonable, may attempt to correct the error before informing the client. A serious error can create a Rule 1.7(a)(2) personal-interest conflict, which the client needs to know about to decide whether to keep or discharge the lawyer or to consent.

On former clients, the opinion concludes there is no duty. It reasons that "nowhere does Model Rule 1.4 impose on lawyers a duty to communicate with former clients," noting the rule's text and comments focus on current clients, and that the drafters knew how to distinguish duties to former clients when they wanted to, as they did in separating Rule 1.7 from Rule 1.9. It also concludes that Rule 1.16(d)'s duty on termination to protect a client's interests does not require disclosing errors discovered long after the representation ended.

In practice

Under this opinion, a lawyer who realizes the lawyer may have made a material error in a current client's matter must tell that client promptly. The opinion holds that materiality is judged by a disinterested-lawyer standard, that the duty rests on Rule 1.4 and may not be set aside for the lawyer's own convenience, and that a serious error can create a Rule 1.7(a)(2) conflict the client must be told about. It holds that the lawyer may consult firm counsel or an insurer first and may attempt to fix a correctable error, and that no Rule 1.4 duty runs to a former client when the error is discovered only after the representation has ended.

Common questions

Q: If I think I made a mistake in a client's case, do I have to tell them?

A: Per the opinion, yes, if it is a material error and the client is current. Rule 1.4 requires informing a current client of a material error, and the lawyer may not withhold the information for the lawyer's own convenience.

Q: What makes an error "material"?

A: The opinion says an error is material if a disinterested lawyer would conclude it is reasonably likely to harm or prejudice the client, or is serious enough that the client would reasonably consider terminating the representation even without harm.

Q: Can I consult my malpractice carrier or firm counsel before telling the client?

A: The opinion says yes. Rule 1.6(b)(4) permits revealing information to secure legal advice about the lawyer's compliance with the Rules, and the lawyer may, where reasonable, attempt to correct the error first, but must still notify the current client promptly.

Q: What if I discover the error only after the representation ended?

A: The opinion says there is no duty under the Model Rules to inform a former client of a material error discovered after the attorney-client relationship has ended; Rule 1.4 does not impose a duty to communicate with former clients.

Background and rules framework

The opinion interprets Model Rule 1.4 (communication), the basis for the duty to inform a current client, and applies Model Rule 1.7(a)(2) (personal-interest conflicts that a serious error can create), Model Rule 1.6(b)(4) (revealing information to obtain advice on compliance), Model Rule 1.16(d) (duties on termination), and Model Rule 1.9 (former-client conflicts, cited to show the drafters distinguished duties to former clients).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.4 (communication; duty to inform of material error)
• ABA Model Rule 1.7(a)(2) (personal-interest conflict)
• ABA Model Rule 1.6(b)(4) (advice on compliance), 1.16(d) (termination), 1.9 (former clients)

Other opinions cited:

• Colo. Bar Ass'n Formal Op. 113 (2005): disclosure of a lawyer's error
• N.Y. State Bar Op. 734 (2000): obligation to advise a client of malpractice

See also

• ABA Formal Op. 494: Personal Relationships With Opposing Counsel
• ABA Formal Op. 489: Notice When Lawyers Change Firms
• ABA Formal Op. 492: Prospective-Client Duties

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-481.pdf