Tip of the Month

Tip for May 2018

Do Not Admit Too Much When Disclosing an Error to a Client

Errors are made by lawyers every day, but must every error be disclosed to the client? Some authorities opine that "whether an attorney has an obligation to disclose a mistake to a client will depend on the nature of the lawyer’s possible error or omission, whether it is possible to correct it in the pending proceeding, the extent of the harm resulting from the possible error or omission, and the likelihood that the lawyer’s conduct would be deemed unreasonable and therefore give rise to a colorable malpractice claim." (Colorado Opinion 113). When a lawyer has made a significant error that must be disclosed to the client, it is important that the lawyer not admit more than is necessary. At minimum, a lawyer must disclose that an error has occurred, and explain the consequences of the error (such as that the client’s claim is not time-barred and so the client cannot recover from that defendant). A lawyer should not, however, make any admission of liability to the client or any admission that the lawyer committed malpractice. Some states, however, require more than others. In Illinois, for example, a lawyer is not required to “volunteer information to his client that his client has a cause of action against him.” Fortune v. English, 226 Ill. 262 (1907). New Jersey and a few others require that the lawyer inform the client not only of the error and its consequence, but also that the client "may have a legal-malpractice claim even if notification is against the attorney's own interest.” Olds v. Donnelly, 150 N.J. 424 (N.J.,1997). Even in states such as New Jersey, it is important to note that telling a client that they might have a claim is very different from admitting to the client that you are liable to the client for legal malpractice (or under any cause of action). When disclosing a material error to a client, a prudent lawyer will determine what is required in her or his state, but never make an admission of liability for malpractice.