Lawyers have a duty to inform current clients of material errors committed by the lawyer during the course of representation, according to a recently released ethics opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility.
However, the opinion also says that lawyers do not have to inform former clients of such material errors.
Formal Ethics Opinion No. 481 explains that this duty is rooted in ABA Model Rules of Professional Conduct Rule 1.4, which governs a lawyer’s duty of communication. That rule requires lawyers to promptly inform clients of any decision or circumstance for which a client’s informed consent is needed. It also requires a lawyer to “reasonably consult” with the client about the means of achieving the client’s goals during representation and keeping the client “reasonably informed” about the progression of the case.
The opinion explains that an error is material if “a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.” The opinion explains that if there is such a material error, the attorney must inform the client promptly. Whether an attorney has time to correct the error first before telling the client will depend on the individual facts.
While the opinion says lawyers have the duty to inform current clients, there is no corresponding duty to inform former clients. “Nowhere does Model Rule 1.4 impose on lawyers a duty to communicate with former clients,” the opinion reads. “Had the drafters of the Model Rule intended Rule 1.4 to apply to former clients, they presumably would have referred to former clients in the language of the rule or in the comments to the rule.”
Typo in last paragraph corrected at 1:49 p.m.