ABA Formal Opinion 481 (April
2018)
A perhaps too little recognized
irony of the duties of loyalty, diligence, and competence we owe our clients is
that the dangers faced may be of our own making. When we have made a mistake – missed a
deadline, failed to join a party needed for proper resolution, or otherwise put
a client’s interests at risk a conflict of interest arises. Our duty of reasonable consultation (RPC 1.2)
generally requires us to keep the client informed of our efforts. But that duty is sorely tested when we may
have caused the client harm. When must
we tell the client? The ABA in Formal Opinion
18- 481 has recently addressed that.
The
ABA Standing Committee on Ethics and Professional Responsibility’s Formal
Opinion, Rule 1.4, requires that ethical lawyers “self-report” to a current
client if they have erred in the client’s representation and if the error is
material. The test is whether a
disinterested lawyer would conclude that the error (a) is reasonably likely to harm
or prejudice the client; or (b) is of such a nature that it would reasonably
cause a client to consider terminating representation even in the absence of
harm or prejudice.
RPC
1.4(a) requires a lawyer to promptly inform a current client (a) of any
decision or circumstance which requires the client’s informed consent; (b) to
reasonably consult with the client about the means by which the client’s
objectives are to be accomplished; and (c) to “keep a client reasonably
informed about the status of a matter.”
RPC 1.4(b) also requires a lawyer to “explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding
the representation.” In a broader
context, the guiding principle which furnishes the foundation for RPC 1.4 is
that “the lawyer should fulfill reasonable client expectations for information
consistent with the duty to act in the client’s best interest.”
Model Rule 1.7(a)(2) provides that a
concurrent conflict of interest exists if “there is a significant risk that the
representation of one or more clients will be materially limited by . . . a
personal interest of the lawyer.” Where a lawyer’s error creates a Rule
1.7(a)(2) conflict, the client needs to know this fact to make informed
decisions regarding the representation, including whether to discharge the
lawyer or to consent to the conflict of interest. At the other extreme, an
error may be minor or easily correctable with no risk of harm or prejudice to
the client.
It
is noteworthy that the ABA concludes that the duty to report is not owed to a
former client. But it seems to me that if
a lawyer has breached the duty to report his/her own error there may still be a
duty – and the malpractice statute of limitations may well be tolled by the failure
to disclose one’s error.
As the ABA Opinion 481 observes various
jurisdictions have over the years addressed the self-reporting obligation as a
corollary to RPC 1.4 and 1.7(b). New
Jersey’s Supreme Court Advisory Committee on Professional Ethics in its Opinion
684, published in 1998, has stated that “when the attorney ascertains
malpractice may have occurred, even though no damage may yet have resulted, has
an obligation to disclose this to his or her current client.”
In New Jersey where I practiced for
thirty years and remain an active member of the bar our Supreme Court in the
1997 case of Olds v. Donnelly, reminded attorneys that they have an
obligation to notify clients when the client may have a legal malpractice
claim, even though notification will be adverse to the attorney’s own
interest. The Court there relied on RPC
1.7(a)(2) which states that a conflict of interest arises if “there is a
significant risk that the representation of one or more clients will be
materially limited by ... a personal interest of the lawyer”; which, therefore,
requires the client to be advised of the attorney’s error in order for the
client to make an informed decision as to whether to discharge the lawyer or to
consent to the conflict of interest.
- -- GWC
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