When you encounter a legal problem and need to hire a California attorney, you expect that (s)he will have the education, knowledge, skill, competence and background to adequately advise and represent you. But human beings being what we are, sometimes an attorney makes a mistake. When your attorney makes one, does (s)he have the obligation to tell you about it?
The State Bar of California explains that the answer to that question depends on the nature and seriousness of the mistake. If no doubt exists that (s)he made the mistake and if that mistake could have negative consequences for you, such as causing you to lose your lawsuit or exposing you to possible damages, then (s)he must disclose it to you. If, on the other hand, the mistake was relatively minor and does not put you at risk of negative consequences, then (s)he may not need to tell you that (s)he made it.
Duty to disclose
An attorney’s duty to disclose arises by virtue of the California Rules of Professional Conduct and/or by virtue of the common law. Some mandatory disclosure situations include the following:
- To keep the client “reasonably informed about significant developments” relative to the attorney’s representation of that client (CRPC 3-500)
- To disclose in writing “the relevant circumstances and the actual and reasonably foreseeable consequenc4es for the client” of any conflict of interest (CRPC3-310)
- To disclose “all material facts,” including “acts of malpractice” (common law fiduciary responsibility)
Remember, your attorney’s obligation to disclose his or her mistake to you does not arise simply because (s)he made a mistake. The disclosure trigger rests in the significance and materiality of the mistake. Once the duty to disclose arises, however, (s)he must disclose the mistake to you promptly and while (s)he still represents you. Failure to do so could give you grounds for an attorney malpractice suit.
This is general educational information and not intended to provide legal advice.