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
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
- 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?
- Addressing the Conflict
- 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)
Topics covered include:
Ethics
Duration of this webinar:
60 minutes
Originally broadcast:
February 21, 2025 10:00 AM PT
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