Last year, the ABA’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 481, which addressed a lawyer’s duty to inform current and former clients of the lawyer’s material error. Mistake
A material error constitutes an error that a disinterested lawyer would conclude is reasonably likely to harm or prejudice a client, or an error that would reasonably cause the client to consider terminating the representation.
The Committee first concluded that Rule 1.4 of the ABA Model Rules of Professional Conduct requires lawyers to inform their current client of a material error committed by the lawyer during the course of their representation. Yet, the Committee, on the other hand, concluded that Rule 1.4 does not impose a similar duty to former clients. Specifically, the Committee rationale that because Rule 1.4 does not require lawyers to communicate with former clients, it does not create a duty to disclose material errors to former cliens.
The Committee then turned its focus on Model Rule 1.16(d), which states that ““a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee[s] or expense[s] that has not been earned or incurred.” Nevertheless, the Committee concluded that that rule does not require lawyers to inform their former clients of material errors, because the rule indicates that the error would have to be discovered while the client was a current client and the rule cannot be reasonably rea as to apply to material errors discovered a long time after the termination of the representation.
The Committee did advise, however, that “good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client.” Still, the decision to disclose a material error to a former client might be done for “personal decisions . . . rather than obligations imposed under the (ABA) Model Rules.”
Read the opinion here.
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