Must a Minnesota lawyer tell a current client about the lawyer's own potential malpractice?

Plain-English summary

The opinion addressed a lawyer who knows the lawyer's own conduct could reasonably be the basis for a non-frivolous malpractice claim by a current client that materially affects the client's interests. It concluded that such a circumstance implicates Rules 1.4 and 1.7, and the lawyer must determine what the Rules require, with particular attention to those two rules.

On conflicts, the opinion reasoned that the prospect of legal liability may make the lawyer's personal interest pose a significant risk of materially limiting the representation, a "concurrent conflict of interest" under Rule 1.7. The lawyer must withdraw unless an exception applies; to continue, the lawyer must reasonably believe he or she can still provide competent and diligent representation and must obtain the client's informed consent, confirmed in writing. Informed consent requires the lawyer to promptly disclose the circumstances and to communicate adequate information about the material risks of, and reasonably available alternatives to, continued representation.

On communication, the opinion stated that regardless of whether a Rule 1.7 conflict exists, the lawyer has duties under Rule 1.4 to inform the client about the conduct to the extent necessary to keep the client reasonably informed, to permit informed decisions, and to allow reasonable consultation about the means of achieving the client's objectives. The opinion surveyed authorities from other jurisdictions recognizing a duty to disclose possible malpractice, and noted that in Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009), the Eighth Circuit cautioned that violating an ethics rule does not by itself establish a breach of legal duty; the opinion expressly did not opine on a law firm's legal duties.

Currency note

The Board flagged this opinion as Repealed effective April 24, 2020; it is retained here for historical research only. Treat this page as historical context, not current guidance. Subsequent rule amendments or later opinions may have changed the analysis. Verify against the current Minnesota Rules of Professional Conduct before relying on any specific requirement mentioned here.

Common questions

Q: Did a lawyer have to tell a current client about possible malpractice?

A: Yes. The opinion held that when the lawyer knew their conduct could reasonably be the basis for a non-frivolous malpractice claim materially affecting the client, the lawyer had to inform the client under Rule 1.4.

Q: Did possible malpractice create a conflict of interest?

A: It could. The opinion treated the lawyer's exposure to liability as potentially a concurrent conflict under Rule 1.7, requiring withdrawal unless the lawyer could still provide competent, diligent representation and obtained the client's informed consent confirmed in writing.

Q: Did the opinion address a law firm's legal (as opposed to ethical) duties?

A: No. Citing Leonard v. Dorsey & Whitney LLP, the opinion expressly declined to opine on a law firm's legal duties to consult about a possible malpractice claim.

Background and rules framework

The opinion applied Rule 1.4 of the Minnesota Rules of Professional Conduct (the analog of Model Rule 1.4 on communication) and Rule 1.7 (the analog of Model Rule 1.7 on concurrent conflicts of interest), along with the definition of informed consent in Rule 1.0(f). It was adopted in 2009 and repealed in 2020.

Citations and references

Rules of Professional Conduct:

• MR 1.4 (communication); MR 1.7 (conflict of interest: current clients)
• Minnesota RPC 1.4, 1.7, and 1.0(f) (informed consent)

Cases:

• Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009); In re SRC Holding Corp., 352 B.R. 103 (Bankr. D. Minn. 2006); Tallon v. Comm. on Prof'l Standards, 447 N.Y.S.2d 50 (App. Div. 1982)

Other opinions cited:

• Colorado Formal Op. 113 (2005); Wisconsin Formal Op. E-82-12; New York State Bar Op. 734 (2000); New Jersey ACPE Op. 684

See also

• ABA Ethics Op. 481: Telling Clients of Your Error
• New Jersey ACPE Op. 684: Advising a Client of a Potential Malpractice Claim

Source

• Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
• Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-21_compressed.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
Repealed: April 24, 2020
OPINION NO. 21
A LAWYER’S DUTY TO CONSULT WITH A CLIENT
ABOUT THE LAWYER’S OWN MALPRACTICE
A lawyer who knows that the lawyer’s conduct could reasonably be the basis for
a non-frivolous malpractice claim by a current client that materially affects the client’s
interests has one or more duties to act under the Minnesota Rules of Professional
Conduct. The requirements of Rules 1.4 and 1.7 are implicated in such a circumstance
and the lawyer must determine what actions may be required under the Rules, with
particular attention to Rules 1.4 and 1.7.
Since the possibility of a malpractice claim that arises during representation may
cause a lawyer to be concerned with the prospect of legal liability for the malpractice,
the provisions of Rule 1.7 dealing with a “concurrent conflict of interest” must be
considered to determine whether the personal interest of the lawyer poses a significant
risk that the continued representation of the client will be materially limited.1 Under
Rule 1.7 the lawyer must withdraw from continued representation unless circumstances
giving rise to an exception are present.2 Assuming continued representation is not
otherwise prohibited, to continue the representation the lawyer must reasonably believe
he or she may continue to provide competent and diligent representation.3 If so, the
lawyer must obtain the client’s “informed consent,” confirmed in writing, to the
continued representation.4 Whenever the rules require a client to provide “informed
consent,” the lawyer is under a duty to promptly disclose to the client the circumstances
giving rise to the need for informed consent.5 In this circumstance, “informed consent”
requires that the lawyer communicate adequate information and explanation about the
material risks of and reasonably available alternatives to the continued representation.6
Regardless of whether the possibility of a malpractice claim creates a conflict of
interest under Rule 1.7, the lawyer also has duties of communication with the client
under Rule 1.4 that may apply. When the lawyer knows the lawyer’s conduct may
reasonably be the basis for a non-frivolous malpractice claim by a current client that
1

Rule 1.7(a)(2).
Rule 1.7(a).
3
Rule 1.7(b)(1) and (2).
4
Rule 1.7(b)(4).
5
Rule 1.4(a)(1).
6
Rule 1.0(f).
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materially affects the client’s interests, the lawyer shall inform the client about that
conduct to the extent necessary to achieve each of the following objectives:
1) keeping the client reasonably informed about the status of the
representation,7
2) permitting the client to make informed decisions regarding the
representation,8
3) assuring reasonable consultation with the client about the means by which
the client’s objectives are to be accomplished.9
Comment
The issue of when and what to say to a client when a lawyer knows that the
lawyer’s conduct described in Opinion 21 could reasonably be expected to be the basis
for a malpractice claim is difficult and may create inherent conflicts. The Board is
issuing Opinion No. 21 to apprise the Bar of the Board’s position on the matter and to
provide guidance to lawyers who may confront the issue.
In consulting with the current client about the possible malpractice claim, the
lawyer should bear in mind Comment 5 to Rule 1.4, which provides that “[t]he guiding
principle is that the lawyer should fulfill reasonable client expectations for information
consistent with the duty to act in the client’s best interests, and the client’s overall
requirements as to the character of representation.”
Other jurisdictions have recognized a lawyer’s ethical duty to disclose to the
client conduct which may constitute malpractice. See, e.g., Tallon v. Comm. on Prof’l
Standards, 447 N.Y.S.2d 50, 51 (App. Div. 1982) (“An attorney has a professional duty to
promptly notify his client of his failure to act and of the possible claim his client may
thus have against him.”); Colo. B. Ass’n Ethics Comm., Formal Op. 113 (2005) (“When,
by act or omission, a lawyer has made an error, and that error is likely to result in
prejudice to a client’s right or claim, the lawyer must promptly disclose the error to the
client.”); Wis. St. B. Prof’l Ethics Comm., Formal Op. E-82-12 (“[A]n attorney is
obligated to inform his or her client that an omission has occurred which may constitute
malpractice and that the client may have a claim against him or her for such an
omission.”); N.Y. St. B. Ass’n Comm. on Prof’l Ethics, Op. 734 (2000), 2000 WL 33347720
(Generally, an attorney “has an obligation to report to the client that [he or she] has
made a significant error or omission that may give rise to a possible malpractice
Rule 1.4 (a)(3).
Rule 1.4 (b).
9 Rule 1.4 (a)(2).
7
8

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claim.”); N.J. Sup. Ct. Advisory Comm. on Prof’l Ethics, Op. 684 (“The Rules of
Professional Conduct still require an attorney to notify the client that he or she may
have a legal malpractice claim even if notification is against the attorney’s own
interest.”).
In re SRC Holding Corp., 352 B.R. 103 (Bankr. D. Minn. 2006), aff’d in part and
rev’d in part In re SRC Holding Corp., 364 B.R. 1 (D. Minn. 2007), reversed Leonard v.
Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009) discuss certain matters addressed in
Opinion 21. In Leonard, the Eighth Circuit held that the bankruptcy court had relied too
heavily on ethics rules in determining whether the law firm had violated a legal duty to
consult with its client about the law firm’s possible malpractice. The Eighth Circuit said
“[d]emonstrating that an ethics rule has been violated, by itself, does not give rise to a
cause of action against the lawyer and does not give rise to a presumption that a legal
duty has been breached.” 553 F.3d 628. In predicting how the Minnesota Supreme
Court would rule on an attorney’s legal duty to consult with a client about the law
firm’s possible malpractice, the Eighth Circuit did not opine on a law firm’s ethical
duties to consult about such a claim. Recognizing the distinction, this Opinion does not
opine on a law firm’s legal duties to consult about such a claim.
A lawyer’s obligation to report a possible malpractice claim to the lawyer’s client
also is discussed in a local article written by Charles E. Lundberg, entitled Self-Reporting
Malpractice or Ethics Problems, 60 Bench & B. of Minn. 8, Sept. 2003, and more recently
and extensively in Benjamin P. Cooper’s article, The Lawyer’s Duty to Inform His Client of
His Own Malpractice, 61 Baylor L. Rev. 174 (2009) and Brian Pollock’s article, Surviving a
Screwup, 34 ABA Litig. Mag. 2, Winter 2008.
Adopted: October 2, 2009.
Repealed: April 24, 2020.

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