Oklahoma Bar Journal
Ethics & Professional Responsibility | ‘The Only One Who Never Makes Mistakes is the One Who Never Does Anything’
By Richard Stevens
Law, a human endeavor, is imperfect. Because it is a human endeavor and imperfect, lawyers make mistakes in the representation of clients. Even the best lawyers make mistakes. ABA Formal Opinion 481 discusses a lawyer’s obligations to a client when the lawyer has erred.
IS THE MISTAKE A MATERIAL ONE?
If the mistake is a material one, the lawyer must inform the client. The first question a lawyer must answer is whether the mistake is material. Errors in legal representation occur along a continuum. According to ABA 481, the test to determine if the mistake is material is whether “a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”
The obligation to inform the client of a material error applies to current clients only. If a material error is discovered after a matter has been concluded and the representation has been terminated, there is no duty under the Rules of Professional Conduct to inform the former client. However, as ABA 481 states, “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.” These decisions are not obligations imposed by the rules.
THE DUTY TO INFORM
The duty to inform arises from ORPC 1.4. As ABA 481 points out:
Model rule 1.4(a)(1) requires a lawyer to promptly inform a client of any decision or circumstance with respect to which the client’s informed consent may be required. Model Rule 1.4(a)(2) requires a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Model Rule 1.4(a)(3) obligates a lawyer to “keep a client reasonably informed about the status of a matter.”
Further, the client may be entitled to be informed about an error if it is serious enough to create a conflict of interest between the lawyer and the client. Under OPRC 1.7 (a)(2), a conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer.” Where such a conflict exists, the client needs to know to be able to discharge the lawyer or consent to the conflict.
Generally, those errors that prejudice the client’s rights or claims or those that result in financial loss or material disadvantage to the client’s legal position must be disclosed. Failure to file a lawsuit within the statute of limitations would be one example of such an error. Errors that would result in significant changes to strategy, timing or some fundamental aspect of the representation must be disclosed. The client needs that information to make informed decisions about the representation. The lawyer may have to disclose that information to meaningfully advise the client. Non-substantive, typographical errors and those that cause nothing more than delay do not typically require disclosure.
Between those two extremes are errors that may or may not require disclosure. Each such error must be analyzed individually to determine whether a disinterested lawyer would conclude that it is material.
WHEN TO INFORM
A lawyer must notify a client promptly of a material error. What constitutes prompt notification will vary depending on the facts and circumstances. The lawyer must be cognizant of the possibility of harm to the client if notification is delayed. Consultation with other lawyers or the lawyer’s professional liability insurer may be appropriate if done promptly. In some cases, it may be reasonable for the lawyer to attempt to correct the error before informing the client. A lawyer should always consider the time necessary to correct the error and be aware of the obligation to keep their client reasonably informed of the status of the representation.
Lawyers have a duty to promptly inform current clients if they have committed a material error in the representation of the client. An error is material if a disinterested lawyer would conclude that it is 1) reasonably likely to harm or prejudice a client or 2) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. Whether notification is necessary or prompt are fact-specific questions.
The opinion contains much more information. I encourage anyone who finds themselves the object of online criticism to read ABA Formal Opinion 481.
Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at email@example.com or 405-416-7055. Ethics information is also online at www.okbar.org/ec.
Oklahoma Bar Journal – OBJ 93 Vol 2 (February 2022)