The Call No Attorney Wants to Make

Precision and perfection are ingrained into the mindset of a practicing attorney. After all, millions of dollars can turn on a detail as minute as the placement a single comma in a contract. So when an attorney commits certain errors, it is only natural that he feels a sense of panic.

But the practice of law is an art, not a science. Each new client comes with a unique set of circumstances to which no set formula will apply, and tactical decisions are often made quickly and under tremendous pressure. Unfortunately, the art an attorney practices is sometimes less like that of a painter, whose mistakes can be corrected by a simple brushstroke, and more like the art of war, where one misstep has the possibility for disaster.

When to Disclose

When should a warrior confess his mistakes to those he fights for? The answer is not always easy, and a lawyer's inclination to admit wrongdoings might depend on how he perceives a client: Is his client the commanding general? If so, he might avoid confession for fear of the punishment the client may impose. On the other hand, he might feel a duty to be honest so as to maintain the commander's trust ' of crucial importance on the battlefield. What if an attorney sees his client as the defenseless civilian he fights to protect? In this case, he might not fear the reprimand so much as the shame of failing to safeguard the client, the possibility that the client will panic and create an even worse situation, or that the client will seek out another warrior for defense.

Whether a lawyer fears a malpractice suit, embarrassment, or monetary loss, ethics rules dictate that he put aside his fears and notify a client of errors that could materially impact a client's legal rights and claims. The Model Rules of Professional Conduct and the rules adopted by state bar associations speak on the issue in several ways: 1) by imposing a duty on lawyers to keep their clients reasonably informed on matters and explain them to the extent necessary to allow clients to make decisions; 2) by forbidding a lawyer from representing a client if there is a significant risk the representation will be materially limited by the lawyer's personal interests; and 3) by prohibiting conduct that involves dishonesty, fraud, deceit, or misrepresentation. See MODEL RULES OF PROF'L CONDUCT Rules 1.4(a)-(b), R. 1.7(a)(2) and R. 8.4(c). These rules ultimately mean that a lawyer must disclose a mistake if it will materially prejudice a client's legal options, or if his independent judgment will be limited by his interest in avoiding liability to a client as a result of the mistake.

What is it about the attorney-client relationship that caused these rules to be promulgated? Why are legal interests so sacred that even a small material intrusion upon them could trigger a duty to disclose and an onslaught of consequences? As a contrast, in the business world it is accepted and understood that a businessman's primary concern will be his own financial interests; his clients' or customers' interests, though often aligned with his own, are secondary.

The same cannot be said of lawyers. The justice system seeks to maintain legal rights in a whole, undeteriorated form. A lawyer is part of that justice system and has a professional duty to refrain from working against this aim ' his own pecuniary interests notwithstanding.

Which Errors Should Be Disclosed?

Before a lawyer begins calling clients to confess every typo and stutter, he should take note that not every error is a material one that need be disclosed. The decision to inform a client of a mistake depends on the nature of the possible error or omission, the availability of courses to correct the error in future proceedings, and the extent to which the error was unreasonable and therefore that it may give rise to a malpractice claim. See Restatement (Third): The Law Governing Lawyers, ' 20 (2000); See also Merchant v. Kelly, Haglund, Garnsey, & Kahn, 874 F.Supp. 300, 304 (D.Colo. 1995). Additionally, the Rules suggest that lawyers should be given the opportunity to remedy an error before disclosing the error to the client. If any resulting harm to the client is not reasonably foreseeable, if a client's rights or claims are not prejudiced, or if an attorney is able to take corrective measures to avoid such prejudice, he need not make a confession. Id.

Sometimes it is quite clear that an error will prejudice a client's legal rights and trigger an ethical duty to disclose. For example, if a claim is lost for failure to file it within a statutory limitations period or for failure to properly serve notice of the claim, or if a right to appeal is lost for failure to file a timely notice of appeal, a lawyer should promptly inform a client. The client should have the option of appealing the dismissal of a claim, or of pursuing a legal malpractice action. The lawyer should also inform the client that it may be advisable for the client to consult with independent counsel regarding the error.

When the duty to disclose an error is not so clear, it may be quite tempting for an attorney to convince himself that the error will not have prejudicial consequences for a client, and therefore, that he need not divulge the error to the client. However, the best course of action is often to err on the side of candor. To begin with, there is significant evidence that suggests that lawyers who are honest with clients about their mistakes are less likely to be sued than those who have attempted to hide their mistakes. See William Saturley & Joseph Callanan, To Err Is Human ' And Client Should Be Informed About Error. Mass. Lawyers Weekly (Jun. 30, 2008). There is similar evidence that doctors who admit their mistakes are also less likely to be sued for malpractice. See, e.g., Kevin Sack, “Doctors Say 'I'm Sorry' Before 'See You in Court.'” The New York Times, May 18, 2008.

Consequences of Non-Disclosure

In addition, if it turns out that an attorney was indeed found to have violated the Rules of Professional Conduct by not disclosing a mistake, the violation may be used to inform a court's decision on breaches of common law fiduciary duties in civil court. See, e.g., In re SRC Holding Corp., 364 B.R. 1, 43 (D. Minn. 2007). Further, an attorney's violation of the Rules may also indirectly influence the monetary judgment awarded in a malpractice claim. See ABA Comm. on Lawyer's Prof. Liab., Informal Op. 1414 (2006). Last, failing to disclose an error to a client may rise to the level of conduct involving dishonesty, fraud, deceit or misrepresentation if the lawyer actively and intentionally conceals the facts and circumstances of the error from the client or misrepresents facts about the error, and the client loses a valuable right, such as a right of appeal, or releases a claim against the lawyer for legal malpractice. See In re Humphrey, 725 N.E.2d 70, 73 (Ind. 2000); Kentucky Bar Ass'n v. Cowden, 727 S.W.2d 403, 404-05 (Ken. 1987).

If an attorney does decide that he has an ethical duty to disclose an error under the Rules, he then must consider the appropriate extent of the disclosure. Courts and Ethics Committees differ on whether Model Rule 1.4(b) creates a duty to disclose the existence of a possible malpractice claim in addition to the required disclosures of the errors themselves. Some hold that, beyond the duty to disclose material errors or conflicts of interest, a lawyer need not inform the client of the existence or merit of a legal in a position where he is asked to jeopardize his own legal interests in order to protect those of his clients, he might question the fairness in the rules that oblige him to do so. This is the burden of a fiduciary, and a lawyer is one to his client. Part of being a zealous warrior for clients means that sometimes an attorney must put himself in perilous circumstances in order to carry out the honorable duty of protecting clients in the legal battlefield.

Ralph C. Ferrara is a partner with Dewey & LeBoeuf and former General Counsel of the United States Securities and Exchange Commission. Mia Havel was a third-year student at Georgetown University Law Center in the Fall of 2008. Mr. Ferrara provided the inspiration and the direction for this article. Ms. Havel provided its intellectual content, according to Ferrara.

Precision and perfection are ingrained into the mindset of a practicing attorney. After all, millions of dollars can turn on a detail as minute as the placement a single comma in a contract. So when an attorney commits certain errors, it is only natural that he feels a sense of panic.

But the practice of law is an art, not a science. Each new client comes with a unique set of circumstances to which no set formula will apply, and tactical decisions are often made quickly and under tremendous pressure. Unfortunately, the art an attorney practices is sometimes less like that of a painter, whose mistakes can be corrected by a simple brushstroke, and more like the art of war, where one misstep has the possibility for disaster.

When to Disclose

When should a warrior confess his mistakes to those he fights for? The answer is not always easy, and a lawyer's inclination to admit wrongdoings might depend on how he perceives a client: Is his client the commanding general? If so, he might avoid confession for fear of the punishment the client may impose. On the other hand, he might feel a duty to be honest so as to maintain the commander's trust ' of crucial importance on the battlefield. What if an attorney sees his client as the defenseless civilian he fights to protect? In this case, he might not fear the reprimand so much as the shame of failing to safeguard the client, the possibility that the client will panic and create an even worse situation, or that the client will seek out another warrior for defense.

Whether a lawyer fears a malpractice suit, embarrassment, or monetary loss, ethics rules dictate that he put aside his fears and notify a client of errors that could materially impact a client's legal rights and claims. The Model Rules of Professional Conduct and the rules adopted by state bar associations speak on the issue in several ways: 1) by imposing a duty on lawyers to keep their clients reasonably informed on matters and explain them to the extent necessary to allow clients to make decisions; 2) by forbidding a lawyer from representing a client if there is a significant risk the representation will be materially limited by the lawyer's personal interests; and 3) by prohibiting conduct that involves dishonesty, fraud, deceit, or misrepresentation. See MODEL RULES OF PROF'L CONDUCT Rules 1.4(a)-(b), R. 1.7(a)(2) and R. 8.4(c). These rules ultimately mean that a lawyer must disclose a mistake if it will materially prejudice a client's legal options, or if his independent judgment will be limited by his interest in avoiding liability to a client as a result of the mistake.

What is it about the attorney-client relationship that caused these rules to be promulgated? Why are legal interests so sacred that even a small material intrusion upon them could trigger a duty to disclose and an onslaught of consequences? As a contrast, in the business world it is accepted and understood that a businessman's primary concern will be his own financial interests; his clients' or customers' interests, though often aligned with his own, are secondary.

The same cannot be said of lawyers. The justice system seeks to maintain legal rights in a whole, undeteriorated form. A lawyer is part of that justice system and has a professional duty to refrain from working against this aim ' his own pecuniary interests notwithstanding.

Which Errors Should Be Disclosed?

Before a lawyer begins calling clients to confess every typo and stutter, he should take note that not every error is a material one that need be disclosed. The decision to inform a client of a mistake depends on the nature of the possible error or omission, the availability of courses to correct the error in future proceedings, and the extent to which the error was unreasonable and therefore that it may give rise to a malpractice claim. See Restatement (Third): The Law Governing Lawyers, ' 20 (2000); See also Merchant v. Kelly, Haglund, Garnsey, & Kahn , 874 F.Supp. 300, 304 (D.Colo. 1995). Additionally, the Rules suggest that lawyers should be given the opportunity to remedy an error before disclosing the error to the client. If any resulting harm to the client is not reasonably foreseeable, if a client's rights or claims are not prejudiced, or if an attorney is able to take corrective measures to avoid such prejudice, he need not make a confession. Id.

Sometimes it is quite clear that an error will prejudice a client's legal rights and trigger an ethical duty to disclose. For example, if a claim is lost for failure to file it within a statutory limitations period or for failure to properly serve notice of the claim, or if a right to appeal is lost for failure to file a timely notice of appeal, a lawyer should promptly inform a client. The client should have the option of appealing the dismissal of a claim, or of pursuing a legal malpractice action. The lawyer should also inform the client that it may be advisable for the client to consult with independent counsel regarding the error.

When the duty to disclose an error is not so clear, it may be quite tempting for an attorney to convince himself that the error will not have prejudicial consequences for a client, and therefore, that he need not divulge the error to the client. However, the best course of action is often to err on the side of candor. To begin with, there is significant evidence that suggests that lawyers who are honest with clients about their mistakes are less likely to be sued than those who have attempted to hide their mistakes. See William Saturley & Joseph Callanan, To Err Is Human ' And Client Should Be Informed About Error. Mass. Lawyers Weekly (Jun. 30, 2008). There is similar evidence that doctors who admit their mistakes are also less likely to be sued for malpractice. See, e.g., Kevin Sack, “Doctors Say 'I'm Sorry' Before 'See You in Court.'” The New York Times, May 18, 2008.

Consequences of Non-Disclosure

In addition, if it turns out that an attorney was indeed found to have violated the Rules of Professional Conduct by not disclosing a mistake, the violation may be used to inform a court's decision on breaches of common law fiduciary duties in civil court. See, e.g., In re SRC Holding Corp., 364 B.R. 1, 43 (D. Minn. 2007). Further, an attorney's violation of the Rules may also indirectly influence the monetary judgment awarded in a malpractice claim. See ABA Comm. on Lawyer's Prof. Liab., Informal Op. 1414 (2006). Last, failing to disclose an error to a client may rise to the level of conduct involving dishonesty, fraud, deceit or misrepresentation if the lawyer actively and intentionally conceals the facts and circumstances of the error from the client or misrepresents facts about the error, and the client loses a valuable right, such as a right of appeal, or releases a claim against the lawyer for legal malpractice. See In re Humphrey, 725 N.E.2d 70, 73 (Ind. 2000); Kentucky Bar Ass'n v. Cowden , 727 S.W.2d 403, 404-05 (Ken. 1987).

If an attorney does decide that he has an ethical duty to disclose an error under the Rules, he then must consider the appropriate extent of the disclosure. Courts and Ethics Committees differ on whether Model Rule 1.4(b) creates a duty to disclose the existence of a possible malpractice claim in addition to the required disclosures of the errors themselves. Some hold that, beyond the duty to disclose material errors or conflicts of interest, a lawyer need not inform the client of the existence or merit of a legal in a position where he is asked to jeopardize his own legal interests in order to protect those of his clients, he might question the fairness in the rules that oblige him to do so. This is the burden of a fiduciary, and a lawyer is one to his client. Part of being a zealous warrior for clients means that sometimes an attorney must put himself in perilous circumstances in order to carry out the honorable duty of protecting clients in the legal battlefield.

Ralph C. Ferrara is a partner with Dewey & LeBoeuf and former General Counsel of the United States Securities and Exchange Commission. Mia Havel was a third-year student at Georgetown University Law Center in the Fall of 2008. Mr. Ferrara provided the inspiration and the direction for this article. Ms. Havel provided its intellectual content, according to Ferrara.