What must a Missouri lawyer disclose after missing a client's filing deadline, and may negotiations continue?

Plain-English summary

Rule 4-1.4 requires disclosure of the limitations impact, the failure to file, and other relevant facts so the client can decide about continued representation. If a malpractice claim may exist, the lawyer should identify its limitations period and possible independent counsel without advising whether the claim is valid; no admission of liability is required.

Rule 4-1.8(h) bars settlement of an actual or potential malpractice claim unless the client receives written advice about seeking independent counsel and a reasonable opportunity to do so.

Negotiations with the unrepresented opponent may continue if the lawyer's personal-interest conflict does not create a significant material-limitation risk. The lawyer cannot disadvantage the client by disclosure without consent, give prohibited legal advice, or make a materially false statement.

In practice

Under this opinion, client disclosure and conflict analysis occur even when favorable negotiations continue. Separate safeguards govern any attempt to settle the client's potential claim against the lawyer.

Common questions

Q: Must the missed deadline be disclosed?

A: Yes, with its impact and relevant facts.

Q: Must the lawyer admit liability?

A: No.

Q: May negotiations continue?

A: Yes, unless the lawyer's personal interest materially limits the representation, and subject to candor and unrepresented-person rules.

Background and rules framework

Rules 4-1.4, 4-1.7, and 4-1.8 govern disclosure, conflict, and malpractice settlement. Rules 4-1.8(b), 4-4.1, and 4-4.3 govern the continuing negotiations.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.4, 4-1.6, 4-1.7, 4-1.8(b), 4-1.8(h), 4-4.1, and 4-4.3
• Missouri Rule 4-1.7 Comment [10]

See also

• ABA Formal Op. 481: Lawyer's Duty to Inform of Material Error
• Missouri Informal Op. 2020-22: Credit-Card Chargebacks

Source

• Landing page: Missouri Informal Opinion 2019-06

Original opinion text

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

Question 1: Client hired Attorney several months ago to represent Client in negotiations with, and possible litigation against, a potential defendant. Attorney did not discuss with Client the impending impact of the statute of limitations, and Attorney neglected to file suit. Client’s action is now time barred. Negotiations are ongoing with the potential defendant, who is unrepresented, and Attorney believes a settlement favorable to Client is imminent. Must Attorney disclose the mistake to Attorney’s Client?

Answer 1: Attorney is obligated to keep Client reasonably informed about the status of Client’s matter and to explain the matter to the extent reasonably necessary to permit Client to make informed decisions about the representation, including decisions by Client as to continued representation by Attorney. See Rule 4–1.4. Attorney must explain to Client the impact of the statute of limitations, Attorney’s failure to file suit, and other relevant facts. If Attorney reasonably believes the mistake may constitute grounds for a malpractice claim, Attorney should advise Client that there is a statute of limitations for malpractice claims and that it may be advisable for Client to consult with independent counsel about a potential malpractice claim. Attorney should not advise client as to whether a valid claim for malpractice exists. See Rule 4–1.7 and Comment [10]. Attorney need not make an admission of liability to Client. Attorney is not permitted to settle a claim or potential claim for malpractice unless Client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek independent counsel on the matter. See Rule 4–1.8(h). Attorney may consider reporting the error to Attorney’s malpractice provider if Attorney can do so in accordance with Rule 4–1.6, Confidentiality of Information.

Question 2: May Attorney continue to negotiate with the potential defendant on behalf of Client?

Answer 2: Attorney is not permitted to advise the opposing party of the facts related to the statute of limitations if the disclosure would disadvantage Attorney’s Client, unless Client grants informed consent. See Rule 4–1.8(b). Attorney should deal with the unrepresented opposing party in accordance with Rule 4–4.3, which precludes the giving of legal advice by Attorney to the opposing party other than the advice to secure counsel. Attorney must not make a false statement of material fact to the opposing party. Rule 4–4.1. Attorney is not required to terminate the representation of Client due to a conflict of interest caused by Attorney’s error unless there is a significant risk Attorney’s representation of Client will be materially limited by a personal interest of Attorney.