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