Ezel / Ethics Opinions / NYSBA
NYSBA 2016-05-11

Does a lawyer have to tell the client when co-counsel on the same matter appears to have committed malpractice?

Short answer: Yes. The opinion concludes that a lawyer must disclose to the client information the lawyer reasonably believes shows that co-counsel, still representing the client, committed a significant error or omission that may give rise to a malpractice claim, so the client can make informed decisions about the representation.
Currency note: this opinion is from 2016
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1092: Disclosing co-counsel's malpractice to the client

Short answer: A lawyer must disclose to the client information the lawyer reasonably believes reveals that co-counsel, who is still representing the client, committed a significant error or omission that may give rise to a malpractice claim, so the client can make informed decisions about the representation.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquirer was retained on the eve of trial, with the client's prior counsel staying on as co-counsel. The inquirer learned that co-counsel had conducted virtually no discovery and made no document requests, though the inquirer believed correspondence and emails could be critical, and believed this was a significant error or omission that might support a malpractice claim. The inquirer worried that disclosing it would damage the relationship with co-counsel but thought disclosure served the client's interests (¶ 1).

The committee grounded the analysis in the settled rule that a lawyer must report to a client a significant error or omission in the lawyer's own services (¶ 3, citing N.Y. State 734 (2000), 295 (1973), 275 (1972)). Those opinions rest on two principles now embodied in Rule 1.4 (keeping the client informed so the client can make decisions) and Rule 1.7 / Rule 1.16(b) (personal conflict and possible withdrawal) (¶¶ 4-7). The committee noted that a desire to preserve harmony with co-counsel implicates a personal conflict under Rule 1.7(a)(2) only if a reasonable lawyer would conclude there is a significant risk that the lawyer's professional judgment would be adversely affected by the lawyer's own financial or personal interests; a desire for harmony aimed at protecting the client's case would not be a disqualifying personal interest (¶ 8).

Extending the own-malpractice duty to co-counsel, the committee held that Rule 1.4(a)'s duty to keep the client informed applies equally to a significant error or omission by co-counsel (¶ 11, citing Estate of Spencer v. Gavin). It cautioned that not every mistake is malpractice and that co-counsel's limited discovery might have been strategic rather than negligent, a fact-and-law question outside the committee's jurisdiction; the inquirer should consider speaking with co-counsel first (¶ 12). If the inquirer concludes co-counsel committed a significant error or omission that may give rise to a claim, Rule 1.4(b) requires disclosing the facts so the client can choose among options such as keeping co-counsel and reserving a claim, terminating co-counsel, or suing now (¶¶ 13-14). The committee set the trigger at a reasonable belief, lower than the "knowledge" standard for reporting under Rule 8.3(a), but cautioned against reporting mere misgivings absent a well-grounded belief that the client needs the information; the error need not be irremediable (¶¶ 15-16).

In practice

Under the New York rules as they stood at the time of the opinion, the committee treated the duty to disclose co-counsel's error as a straightforward application of the lawyer's communication duty under Rule 1.4, parallel to the duty to disclose the lawyer's own error. The operative trigger is the inquirer's reasonable belief that the error is significant and may give rise to a claim, not certainty and not the higher Rule 8.3 knowledge standard. The opinion frames the disclosure around client decision-making: the client needs the facts to decide whether to continue with co-counsel, replace counsel, or pursue a claim. It also flags, without resolving, that the inquirer's stake in the relationship with co-counsel could itself create a Rule 1.7 personal conflict that the inquirer must evaluate.

Common questions

Q: Does a lawyer have to report co-counsel's mistake to the client, or only the lawyer's own?

A: Both. The opinion concludes Rule 1.4(a)'s duty to keep the client informed applies equally to a significant error or omission by co-counsel that may give rise to a malpractice claim (¶ 11).

Q: What is the threshold for disclosing co-counsel's error?

A: A reasonable belief. The opinion sets the trigger at a reasonable belief that co-counsel committed a significant error or omission that may give rise to a claim, lower than the "knowledge" standard for reporting disciplinary violations under Rule 8.3(a) (¶ 15).

Q: What if co-counsel's choice to skip discovery was strategic?

A: Then it may not be a significant error. The opinion notes the decision may have been negligent or strategic and directs the inquirer to determine whether it was a significant error, a fact-and-law question, ideally after speaking with co-counsel (¶ 12).

Q: Does the error have to be irreparable before disclosure is required?

A: No. The opinion concludes the error need not be irremediable before the inquirer should report it to the client (¶ 16).

Background and rules framework

The opinion interprets New York Rules of Professional Conduct 1.4(a) and (b) (communication and informed client decision-making), 1.7(a) (personal-interest conflicts), and 1.16(b) (withdrawal), with reference to 8.4(c), corresponding to ABA Model Rules 1.4, 1.7, 1.16, and 8.4. The duty to keep the client informed under Rule 1.4 is the touchstone, with client autonomy in decision-making as the underlying value (Comment [1]). The personal-conflict overlay comes from Rule 1.7(a)(2)'s significant-risk standard.

Citations and references

Rules of Professional Conduct:

  • MR 1.4 / NY RPC 1.4(a), (b) (communication; informed decisions)
  • MR 1.7 / NY RPC 1.7(a)(2) (personal-interest conflicts)
  • MR 1.16 / NY RPC 1.16(b) (withdrawal)
  • MR 8.4 / NY RPC 8.4(c) (dishonesty, fraud, deceit, misrepresentation)

Cases:

  • Estate of Spencer v. Gavin, 946 A.2d 1051 (N.J. Super. App. Div. 2008), on a lawyer's duty to report co-counsel's misconduct
  • In re Tallon, 447 N.Y.S.2d 50 (App. Div. 1982), on disclosing one's own error to the client

Other opinions cited:

  • N.Y. State 734 (2000); N.Y. State 295 (1973); N.Y. State 275 (1972): duty to report one's own significant error or omission
  • ABA Informal Op. 1010 (1967); Colorado Formal Op. 113 (2005); New Jersey ACPE Op. 684 (1998)

See also

Source