CLE
Tracy L. Kepler
Tracy L. Kepler CNA's Lawyers Insurance Program
From Errors to Legal Ethics A Lawyer's Guide to Navigating Mistakes
Overview AI Webinar Summary
From Errors to Legal Ethics: A Lawyer's Guide to Navigating Mistakes

It’s not easy being a lawyer. Attorneys face rigid deadlines, packed calendars, and long hours. Clients are often stubborn and unforgiving, demanding 110% of your attention and expecting five-star work at 2-star prices. As attorneys are only human, even the most skilled and seasoned will inevitably, to some degree, make a mistake.

A mistake may damage your case, and might also threaten your relationship with a client or even your position at a firm. But failing to respond appropriately to a mistake will jeopardize your license and your career. During this course, we will consider an attorney’s duties related to error disclosure, what exactly those duties require, and why it’s important to take these duties seriously.

LEARNING OBJECTIVES

At the end of this webinar, attendees will be able to:

  • Understand the foundation of the duty to disclose, e.g., fiduciary duties, loyalty, confidentiality, and MRPC 1.4 and 1.7(a)(2)
  • Learn what triggers the duty to report an error, to whom & whether the representation can continue
  • Identify how to keep communications with in-house ethics counsel privileged
  • Discover best practices for having a conversation with your client about the error
  • Gain knowledge on the consequences of nondisclosure of the error
  • Address the conflict of interest and prepare an effective waiver

Topics covered include:
Legal Ethics
Agenda:
  • Why Lawyers Make Errors

  • Foundation of Duty to Disclose
    • Common law fiduciary duties
    • Loyalty and confidentiality
    • ABA Model Rules of Professional Conduct
      • Rule 1.4: Explain case developments and keep client informed
      • Rule 1.7(a)(2): Avoid or address conflicts involving interest of lawyer

  • Triggering the Duty
    • ABA Formal Opinion 481 (2018): attorney must disclose all “material errors” to the client
    • Before disclosure, consider:
      • Have I made an error at all?
      • Is my error likely to harm or prejudice the client?
      • Even if my error was harmless, may it cause the client to terminate my representation?

  • Disclose to Whom?
    • Attorneys owe duties to former clients...
      • ABA Model Rule 1.9: Conflicts involving former clients
      • ABA Model Rule 1.16(d): Protect the client’s interests upon termination
      • ... but not a duty to disclose errors
    • Stay on the same page as your client
      • Does the client believe you’re still their attorney?
      • Is the client’s belief reasonable?

  • Intra-Firm Discussions
    • Are communications with in-house ethics counsel privileged vis-à-vis the client?
    • Trend: Yes, provided:
      • Position is formally established
      • Counsel unaffiliated with (and doesn’t bill) the client
      • Disclosure is not reasonably delayed
      • Communications confidential and segregated

  • Consulting Your Insurer
    • Actual claim
      • Duty to report
    • Potential claim
      • Must disclose on renewal application, but no ongoing duty to report
      • BUT: Advantages to reporting

  • What To Tell the Client
    • Factual circumstances of error
    • Consequences/significance to client
    • Strategy to correct (if possible)
    • Client’s right to terminate representation
    • Desirability of seeking independent counsel
    • Possibility of claim

  • How To Tell the Client
    • Okay
      • Admitting you erred
      • Memorializing in a letter
    • NOT Okay
      • Admitting liability
      • Settling or securing release without insurer consent, violation of MRPC 1.8(h) and vitiation of coverage

  • Consequences of Nondisclosure
    • Fraudulent concealment
    • Fiduciary relationship? Silence is deception
    • Other possibilities: discipline and punitive damages

  • May the Representation Continue?
    • ABA Model Rule 1.7(b)

  • Addressing the Conflict
    • Components of the waiver

  • Final Takeaway
    • “When you make a mistake, there are only three things you should ever do about it: admit it, learn from it, and don’t repeat it.” – Bear Bryant
    • Resources

  • Questions & Answers (as time permits)
Duration of this webinar: 60 minutes
Originally broadcast: February 21, 2025 10:00 AM PT
Webinar Highlights

This webinar is divided into section summaries, which you can scan for key points and then dive into the sections that interest you the most.

Introduction
Tracy discusses the inevitability of errors in legal practice and the importance of responding appropriately to protect one's career. The focus of the webinar is on understanding duties related to error disclosure and the potential consequences of failing to address mistakes.
Duty to Disclose Errors
Tracy explains the historical foundation of the duty to disclose errors, rooted in fiduciary obligations of loyalty and confidentiality. The American Bar Association Model Rules of Professional Conduct codify these duties, particularly Rule 1.4 on communication and Rule 1.7 on conflicts of interest. Errors must be disclosed if they are significant enough to affect the client's case or the attorney's ability to represent them ethically. The challenge lies in determining which errors are material.
Determining Material Errors
The ABA's Formal Opinion 481 defines a material error as one likely to harm or prejudice a client or cause them to consider terminating representation. Determining material errors involves judgment, considering whether an error is significant enough to require disclosure. Not all adverse developments are errors; attorneys must discern whether an issue is a mistake or simply a fact of the case. If an error is identified, attorneys must assess its potential harm and whether it can be corrected without significant impact on the client. Errors that are unlikely to cause harm or can be easily corrected may not require disclosure, but this is a judgment call.
Handling Errors and Client Communication
Errors that undermine client confidence, even without harm, may still require disclosure under ABA Opinion 481. The duty to disclose errors generally applies to current clients, not former ones, unless the error affects ongoing representation. Attorneys must clearly distinguish between current and former clients to determine disclosure obligations. Written engagement and closure letters are crucial to clarify the end of representation and avoid confusion about client status. When a former client inquires about past representation, attorneys should advise them to seek independent counsel if an error is discovered.
Intra-Firm Discussions and Privilege
Intra-firm discussions about errors should be confidential and involve designated ethics counsel to maintain privilege. The trend in legal cases is to protect communications with ethics counsel, but certain steps must be taken to ensure this privilege. Ethics counsel should not be involved in the client's matter to avoid conflicts of interest, and communications should be kept separate. Timely disclosure to the client is crucial to avoid harm and maintain trust, even when consulting with ethics counsel. Confidentiality must be maintained in all communications to protect the attorney-client privilege. A 2023 case highlighted the importance of maintaining confidentiality in intra-firm discussions to uphold attorney-client privilege.
Insurance and Reporting Obligations
Errors should be reported to malpractice insurance carriers promptly to mitigate risks and receive guidance. Early reporting of potential claims can prevent escalation and provide risk management support from insurers. Attorneys should be cautious about admitting liability or settling claims without insurer consent to avoid voiding coverage. Clear communication with clients about errors is essential, focusing on facts and potential remedies without admitting liability.
Consequences of Non-Disclosure
Non-disclosure of errors can lead to fraudulent concealment claims, which may toll the statute of limitations or prevent its assertion. Failing to disclose errors can result in professional discipline and damage to the attorney's reputation. After disclosing an error, attorneys must decide whether they can continue representing the client effectively. Obtaining informed consent from the client is necessary if representation continues, ensuring the client understands the conflict. Written waivers should be specific and allow the client to seek independent counsel before signing.

Please note this AI-generated summary provides a general overview of the webinar but may not capture all details, nuances, or the exact words of the speaker. For complete accuracy, please refer to the original webinar recording.

Continuing Legal Education (CLE) Credits

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California CLE

Status: Approved

Credits: 1.00 Legal Ethics

Earn Credit Until: June 30, 2026

South Carolina CLE

Status: Approved

Credits: 1.00 Legal Ethics/Professional Responsibility

Difficulty: All Levels

Earn Credit Until: December 31, 2025

North Carolina CLE

Status: Approved

Credits: 1.00 Ethics

Earn Credit Until: February 28, 2026

Texas CLE

Status: Approved

Credits: 1.00 Legal Ethics/Professional Responsibility

Earn Credit Until: January 31, 2026


This presentation is approved for one hour of Legal Ethics CLE credit in California, one hour of Legal Ethics/Professional Responsibility CLE credit in South Carolina (all levels), and one hour of Ethics CLE credit in North Carolina. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours, of which 1.00 credit hours will apply to Legal Ethics/Professional Responsibility credit.

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At this time, Justia only offers CLE courses officially accredited in certain states. Lawyers may generate a generic attendance certificate to self-submit credit in their own jurisdiction, but Justia does not guarantee that lawyers will receive their desired CLE credit through the self-submission or reciprocity process.

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Speaker
Tracy L. Kepler
Tracy L. Kepler Director of Risk Control Consulting
CNA's Lawyers Insurance Program

Tracy L. Kepler is the Risk Control Consulting Director for CNA’s Lawyers Insurance Program. In this role, she designs and develops content and distribution of risk control initiatives relevant to the practice of law. She collaborates with the underwriting and claims teams to develop and execute strategies for the profitable growth of the program. Tracy lectures frequently at CNA-sponsored events and at state and local bar associations and national seminars hosted by industry-leading organizations. She also writes articles focusing on law firm risk control and professional responsibility issues. Read More ›

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