ABA Defines When a Lawyer Must Tell Clients About Mistakes

ABA Defines When a Lawyer Must Tell Clients About Mistakes

In Formal Opinion 481, dated April 17, 2018, the ABA Standing Committee on Ethics and Professional Responsibility issued an Opinion defining when a lawyer’s mistakes must be reported to the client. The Committee reviewed Professional Conduct Rule 1.4, as well as case law and state ethics opinions, to conclude that material mistakes must be promptly reported to the client. The Committee went on to say that a mistake is material if a disinterested lawyer would conclude that it is reasonably likely to harm or prejudice a client or if it could reasonably cause a client to consider terminating the representation, even the absence of harm or prejudice. 

The second part of the definition of material is likely to cause concern in jurisdictions like New Hampshire, where it is common for lawyers to extend courtesies that would allow their adversaries to obtain relief, even in situations that might appear very alarming to a non-lawyer client. Thus, according to the Committee’s reasoning, if the mistake is such that it could cause a client to lose confidence in his lawyer, it must be reported even though harm does not result.

The Committee noted that Rule 1.4 addressed duties to clients and determined that there was no corresponding duty to report errors to former clients. The Committee used the example of a lawyer who uses an agreement drafted for a former client as a template for work that he is doing for another client and finds that the agreement includes a material error, which might have adverse consequences for the former client. The lawyer is under no ethical obligation to report this to the former client. However, the lawyer might choose to do so in order to avoid a potential claim by the former client, arising from the error.

Reference: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_481.authcheckdam.pdf

Next Post >
Closely Held Corporation's Lawyer Can Owe a Fiduciary Duty to Minority Shareholders
Disclaimer: This Blog/Website ("Blog") does not provide specific legal advice. It is for educational purposes only. Use of the Blog does not create any attorney-client relationship between you and Devine, Millimet & Branch, Professional Association or the author(s) of any posts. The Blog does not constitute legal advice and is not a substitute for competent legal advice from a licensed attorney in your state. Any links from another site to the Blog are beyond the control of Devine, Millimet & Branch, Professional Association and do not convey their approval, support, or any relationship to any site or organization.