Does a lawyer have to tell a client that the lawyer made an error that might be malpractice and that the client may have a claim against the lawyer?

Plain-English summary

Opinion E-82-12 answered whether a lawyer has an ethical obligation to tell a client that an omission has occurred which may constitute malpractice and that the client may have a claim against the lawyer. The committee answered yes.

The committee reasoned that a lawyer is required to represent a client competently and zealously and may not intentionally prejudice the client, knowingly engage in conduct contrary to a disciplinary rule, or handle a matter the lawyer is not competent to handle (SCR 20.31, 20.34, 20.35(1)(c), 20.36(1)(h), 20.32(1)). A lawyer also may not attempt to exonerate or limit the lawyer's liability to a client for malpractice (SCR 20.33 and 20.31(6)). The committee drew on the lawyer's fiduciary duty of full disclosure, citing Laehn Coal & Wood Co. v. Koehler, 267 Wis. 297, 64 N.W.2d 823 (1954), where the Wisconsin Supreme Court held that an attorney has a duty to make full disclosure of all information material to the transaction for which the attorney is retained. The committee quoted a malpractice treatise that complete disclosure must be made of all information that may bear upon the quality of the attorney's representation. On that basis, the committee concluded the lawyer is obligated to inform the client of the potential malpractice and the possible claim.

Currency note

This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. A lawyer's duty to disclose the lawyer's own potential malpractice is now generally analyzed under the communication duty (SCR 20:1.4 / Model Rule 1.4) and the personal-interest conflict rule (SCR 20:1.7 / Model Rule 1.7), with the bar on prospectively limiting malpractice liability in SCR 20:1.8(h) / Model Rule 1.8(h). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: If a lawyer realizes an error may have harmed the client, can the lawyer stay silent?

A: No. The committee concluded the lawyer is obligated to inform the client that an omission has occurred which may constitute malpractice and that the client may have a claim against the lawyer.

Q: What duties did the committee rely on?

A: The duty of competent and zealous representation, the bar on intentionally prejudicing or damaging the client, the bar on limiting the lawyer's own malpractice liability, and the lawyer's fiduciary duty of full disclosure of material information.

Q: Did the committee cite Wisconsin case law?

A: Yes. It relied on Laehn Coal & Wood Co. v. Koehler, where the Wisconsin Supreme Court held an attorney must make full disclosure of all information material to the matter for which the attorney was retained.

Background and rules framework

The opinion rested on the former Wisconsin Supreme Court Rules governing competence and the prohibition on limiting malpractice liability (SCR 20.31, 20.33, 20.34), together with the lawyer's fiduciary duty of full disclosure recognized in Wisconsin case law. The corresponding current provisions are the communication duty (SCR 20:1.4 / Model Rule 1.4), the personal-interest conflict rule (SCR 20:1.7 / Model Rule 1.7), and the limitation-of-liability rule (SCR 20:1.8(h) / Model Rule 1.8(h)).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.31, 20.34 (competent and zealous representation) (former Code)
• Wis. SCR 20.33, 20.31(6) (no exoneration or limitation of malpractice liability) (former Code)
• Model Rules 1.4, 1.7, 1.8(h) (communication; personal-interest conflict; limiting liability)

Cases:

• Laehn Coal & Wood Co. v. Koehler, 267 Wis. 297, 64 N.W.2d 823 (Wis. 1954), attorney's duty of full disclosure of material information

See also

• WI Ethics Op. E-84-7: Duty to Inform a Court of an Error
• WI Ethics Op. E-87-4: Malpractice Counsel Who Is Regular Opposing Counsel
• WI Ethics Op. E-09-03: Communicating Fees and Expenses to Clients

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-12.pdf