The American Bar Association recently published an opinion finding that lawyers who fail to disclose material errors relating to representation to their clients are in violation of their professional duty under Model Rule 1.4. Failure
The committee recognizes and acknowledges the possibility of any lawyer, competent or not, to err in the course of representing a client and published this opinion as a result.
The committee specifically defined a material error as one that could be reasonably determined by a disinterested lawyer to either “likely to harm or prejudice a client; or . . . of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.” Disclosure of a material error implicates several sections of Model Rule 1.4.
First, under Model Rule 1.4(a)(1) a lawyer is required to promptly inform clients of any decisions or circumstances which may require the client’s informed consent. Second, under Model Rule 1.4(b) a lawyer has a duty to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Additionally, the committee went on to state that if a material error relates to a former client’s representation and the lawyer does not discover the error until after the representation has been terminated, the lawyer has no obligation under the Model Rules to inform the former client of the error.
Read the full ABA opinion here.
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