An American Bar Association (ABA) magazine geared toward the business end of the legal profession recently gave attorneys a bit of friendly advice, lawyer to lawyer. Don’t be afraid to tell your clients about mistakes that matter.
The advice emphasizes official ethics guidance from an ABA committee given last year. These ABA articles show how attorneys sometimes just have a bad day at the office, and other times they must be held accountable for legal malpractice.
Official guidance from the ABA ethics committee
Last year, our blog discussed official guidance recently issued by the ABA’s ethics and professional responsibility committee. It alerted attorneys on what the ABA expects when attorneys make errors in representing clients (either current and former).
The ABA committee addressed “material” errors, meaning among other things errors that might harm the client or the attorney’s business. So, the ethics guidelines were about serving the client’s legal case as well as putting the paying customer first.
This year, the ethics column of the ABA’s Law Practice Magazine published a friendly article entitled “Addressing Our Mistakes.” The columnist reminds colleagues that attorneys are making mistakes more often than they used to, and malpractice insurers report paying more, and more expensive, settlements.
Telling the client or bowing out
Among the key takeaways from the column is attorneys should take a deep breath and calmly ask themselves if their mistake can be fixed. If so, the mistake probably won’t be “material,” so there’s less of a reason to disclose it. If it can’t be fixed and is material, the attorney should admit the mistake.
The column highlights what “may be the most dangerous question.” There can be times when handling the error one way would hurt the client while handling it another way would hurt the lawyer. In the end, the client’s best interest must guide the attorney’s actions. If the attorney can’t bite the bullet, there are situations where the client must be urged to find other representation.
The article reminds lawyers that many states have a statute of limitations that, after a specific amount of time, lets attorneys off the hook and makes them immune to malpractice lawsuit for an error. But in many places, that clock starts running as soon as the attorney tells the client about the mistake. If they never admit the error, they can be sued forever.