When You Make a Mistake: The California Lawyer’s Ethical Duty to Disclose Malpractice
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“I think I committed malpractice. Do I have to tell my client?”
Lawyers are human. Mistakes happen—even to diligent, competent attorneys. Some mistakes are minor. Others may have serious consequences for the client. But when the error is material, the lawyer has an ethical duty to communicate the mistake to the client.
In my work advising lawyers on legal ethics, I’ve seen how uncomfortable this issue can be. You blew the statute of limitations or deadline to designate experts, accidentally skipped a hearing, or didn’t catch a critical issue until it’s too late. You’re worried about the implications—for the case, for your client, and, yes, for yourself.
So, what now?
You Have a Duty to Communicate Significant Developments
California’s Business and Professions Code section 6068(m) says lawyers must keep clients reasonably informed of significant developments and respond promptly to reasonable requests for status updates. Rule 1.4 of the California Rules of Professional Conduct (“RPC”) reaffirms this requirement, and further adds that lawyers have a duty to on this, requiring lawyers to both: 1) reasonably inform clients of any “significant developments relating to the representation;” and 2) promptly inform the client of any circumstance that requires the client’s informed consent under the Rules of Professional Conduct; and 3) to explain things clearly enough for clients to make informed decisions.
Neither of these rules specifically refers to acts of malpractice, however, California’s courts have long recognized a lawyer’s duty to disclose acts of malpractice to their affected clients. Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188-189 (“The duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests.”); Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 514 (“attorneys have a fiduciary obligation to disclose material facts to their clients, an obligation that includes disclosure of acts of malpractice.”))
Likewise, in Formal Ethics Op. 2009-178, the State Bar’s Standing Committee on Professional Responsibility and Conduct (“COPRAC”) held that a lawyer’s duty to communicate requires that lawyers disclose to their clients the material facts potentially giving rise to any legal malpractice claim against the attorney. See Formal Op. 2009-178 at p. 4. More recently, in formal Formal Op. 2019-197, COPRAC found that “[a]n error potentially giving rise to a legal malpractice claim is a ‘significant development relating to the representation’” requiring disclosure under RPC Rule 1.4. COPRAC Formal Op. 2019-197 at pp. 3-4 (internal quotes modified). Elsewhere, Formal Op. 2019-197 states that acts of malpractice create a conflict of interest between lawyer and client that must be disclosed in order for the client to provide their informed written consent to continue the representation.
So, the law is clear: you must disclose acts of malpractice.
Risk Management Tip: review your malpractice policy before admitting fault
Some malpractice policies require you to notify them before admitting to any acts of malpractice.
What Needs to Be Disclosed?
At minimum, a lawyer who has committed acts of malpractice must disclose to the client:
The relevant facts;
How those facts could affect the client or the case;
Whether any options exist to fix or mitigate the problems created by the facts; and
Whether and to what extent a conflict of interest now exists between lawyer and client;
However, you should NOT advise the client as to whether they have a malpractice claim against you or your firm. COPRAC Formal Op. 2019-197 at 9. As will be discussed below, once you determine that you have committed an act of malpractice, a conflict of interest exists between you and your client. As such, you cannot advise the client impartially on any issue within the scope of that conflict, including whether and to what extent the client might have a viable malpractice claim against you or your firm. So, you can’t advise the client that they may have a viable malpractice claim against you; however, you can advise them to seek independent counsel on that matter.
Risk Management Tip: don’t overstate the problem
When disclosing mistakes or malpractice to clients, many lawyers feel profound shame or guilt. These feelings drive many lawyers to overstate the scope of their mistakes to their clients. This is neither required by the rules nor helpful to their clients. The California Supreme Court has held that a lawyer’s fiduciary duty “embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests.” Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188-189. When you overstate the problem, you distort the situation and impare your client’s ability to make an informed decision about how to proceed. So, while you may feel shame and guilt, keep your feelings in check when drafting your disclosure to your clients. Everyone will benefit.
Do I have to withdraw from the case?
As discussed above, when you determine that your own mistakes might give rise to a malpractice claim, you and your client’s interests likely no longer fully align and a conflict of interest is created. However, that does not necessarily mean that you have to withdraw from the case. RPC Rule 1.7(b) “a lawyer shall not, without informed written consent from each affected client . . . represent a client if there is a significant risk the lawyer’s representation . . . will be materially limited by . . . the lawyer’s own interests.” (emphasis added). So, it’s possible that you may continue the representation, provided you obtain the proper informed written consent.
The elements and structure of the informed written consent will vary case to case, but they will may resemble—if not outright mirror—the elements and structure of the malpractice disclosure.
Final Thoughts: hire ethics counsel to help with disclosure
Making a mistake is difficult. Talking to your client about it is often even harder. But when the error is material, the rules are clear: you must tell the client. Not vaguely. Not halfway. Fully, and in a way that equips the client to decide how to move forward.
However, at the same time, you must avoid overstating the scope of the problem. That distorts your client’s ability to make an informed decision about the case.
How do you strike that balance when you’re so personally invested in the case? That’s where ethics counsel comes in. At Little Legal, we help lawyers draft disclosures that satisfy their ethical duties without crossing the line into self-flagellation. If you need help threading the needle on disclosure, please reach out—we’d be happy to assist.
Need more help?
At Little, legal ethics is what we do. We advise lawyers and law firms of all types and sizes on all manner of ethics issues. So, no matter what you’re facing, we’ve likely seen it before and helped someone through it.
Learn how we can help you and your firm Do the Right Thing when it comes to ethics.
Call us at 808-265-9895, email Ryan directly at Ryan@LittleLegal.com, or fill out the contact form below. All inquiries will receive a response within 24 hours.
