February 1998

Ethics And The Law
What to do When You Make a Big Mistake

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

The practice of law is a learned profession requiring knowledge and skills. You cannot know, or be expected to know, everything, nor can you always perform as skillfully as you should. Sometimes you do not know what you should know, you do not handle a matter with the requisite skill, or you simply forget things. Most likely at some time in your practice you have made, or will make, a big mistake.

This article briefly considers your ethical obligations as a lawyer when you make that big mistake. It looks at some of the applicable Rules of Professional Conduct (RPCs) to determine what obligations you must satisfy under those rules to avoid discipline as a result of your having made the big mistake. It also assumes that, while you want to know what the minimum level of required conduct is, you also want to serve your clients at far better than the merely ethical level. This article suggests some ways to better serve your clients and the profession when you make the big mistake. It also asks some questions about what ethical level of practice you want for yourself and for the profession.

RPC 1.1 requires you to provide "competent representation" to your client. "Competent" means that you must have "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." "Competent" does not mean "perfect," nor does it mean "without any mistakes." It does mean, however, representation without material (big) mistakes. This article assumes that your big mistake is a material mistake constituting malpractice and that you recognize that your representation has not met the standard of competence.

If your representation is continuing, and it is not too late to remedy the mistake, you should promptly remedy it at no cost to your client. This is simply part of competent representation. Do you also have an obligation to advise your client of the mistake? If the representation is continuing, but it is too late to remedy the mistake, or the representation is now over and you cannot remedy the mistake, what are you to do? In those cases, do you have an obligation to tell your client? If you do, what and how do you need to tell the client?

RPC 1.4 requires you to keep your "client reasonably informed about the status of a matter." This is an affirmative, positive duty on your part regardless of whether or not the client inquires. Indeed, you may be the only one who knows of the mistake at the time, so there is no way the client can know unless you affirmatively disclose it.

RPC 1.4 also requires you to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." A big mistake affects the status of a matter; it raises obvious questions about your competence to handle the matter entrusted to you by the client, and your client is entitled to be informed about this so as to make an informed decision regarding whether or not to continue with you as his or her lawyer. When a lawyer is unable to carry a matter forward promptly, the lawyer must inform the client of that fact. Pasanante v. Yormark, 350 A.2d, 497 (N.J. 1975), and In re Putsey, 675 N.E.2d 703 (Ind. 1997). Where a lawyer fails to act on a client's claim, the lawyer has a duty to promptly notify the client of this failure and of the possible claim the client may thus have against the lawyer. Tallon v. Committee on Professional Standards, 447 N.Y.S.2d 50 (1982), and In re Higginson, 664 N.E.2d 732 (Ind. 1996).

If you make a big mistake, recognize it as such, and can remedy it, you should do so as part of your ethical duty of competence. As part of your ethical duty of communication to your client, you should inform your client of the big mistake and that you have remedied it, so that the client can determine what, if anything, to do about the representation. If the mistake can be, or has been, remedied at no cost or harm to the client, it is unlikely this disclosure will cause a problem with your client. To the contrary, if you have established a trusting relationship with the client, the admission of error is likely to improve the attorney-client relationship.

If you make a big mistake, you have an adverse interest to your client. Whether or not you remedy the situation, you may still have liability to the client. You need to inform your client of this adverse interest. RPC 1.7(b) prohibits you from representing a client "if the representation of that client may be materially limited by
. . . the lawyer's own interests." Your representation of the client may well be limited by your fear of the discovery of your mistake or of a possible malpractice claim.

RPC 1.7(b) permits you to continue your otherwise adverse representation if you reasonably believe the representation will not be adversely affected and if your client consents to the representation after consultation and full disclosure of the material facts. The RPCs define "after consultation" as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." That means you must be honest with your client that the mistake is a big one. It also means that you must tell your client that he or she may have a malpractice claim against you. Even if you have established a good and trusting relationship with the client, this can be very difficult to do. If you do not have such a relationship, it can seem impossible. The RPCs do not permit compromises, however, in ethical principles.

If you want to settle the malpractice claim with the client, RPC 1.7(h) requires you to notify your client, or former client, that it is appropriate for the client to obtain independent legal representation to determine what rights, if any, the client may have against you. Under RPC 1.7(a), any such settlement must be "fair and reasonable" to the client, and it may not be conditioned on the client's agreeing not to file a disciplinary grievance against you, since such a condition would be prejudicial to the administration of justice and be prohibited by RPC 8.4(d)(4). See The Law of Lawyering, 1.8:902, 1997 Supplement.

If you no longer represent the client, you are still in a difficult situation. While RPC 1.9(b) prohibits you from using confidences or secrets relating to the representation of the former client to the disadvantage of the former client, depending on the facts of the case your big mistake, or your knowledge of it or of your client's possible malpractice claim against you, may or may not be within the definition of "confidences or secrets" and may or may not be covered by RPC 1.9(b). Confidences are defined as "information gained in the professional relationship . . . the disclosure of which . . .would likely be detrimental to the client" [emphasis added.] If, for example, your big mistake resulted in your client's getting a benefit to which the client was not legally entitled, disclosure of it might indeed be detrimental to your client, since the benefit might be lost. On the other hand, more commonly your big mistake results in your client's not getting a benefit to which the client was at least arguably entitled. In this case, disclosure of the malpractice might be beneficial, not detrimental. For example, if you made a big mistake in representing a criminal defendant and the client was convicted as a result, your big mistake was prejudicial ineffective assistance of counsel, and disclosure of that would clearly be beneficial. Thus, it would not be a "confidence" as defined, nor would RPC 1.9(b) apply. Your knowing failure to disclose that information, however, is a continuing harm to the client, and it might reasonably be argued that by not informing the client of the mistake and possible claim against you, you are engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, all prohibited by RPC 8.4. In the criminal-law context, such failure to disclose might also be viewed as lack of candor toward the tribunal under RPC 3.3 or conduct detrimental to the administration of justice prohibited by RPC 8.4(d)(4).

Aside from the ethical considerations, there are other things you should do when you become aware of having made the big mistake. You should obviously make sure that in fact you made a big mistake: very carefully analyze the facts and law, and consult another lawyer, especially one knowledgeable in malpractice in the area in question. When you are doing this, however, do not think merely from a lawyer's perspective. Remember that you are a lawyer to serve your client, not yourself. So consider your conduct also from the client's perspective and whether or not the client was well-served by your conduct. Even if your conduct was not malpractice, if your client was dissatisfied with your conduct you should still want to remedy that dissatisfaction to the extent you reasonably can.

If you have malpractice insurance, you should promptly notify your insurer. Insurers often can help you resolve the matter with the client. Insurers are usually not pleased, however, with lawyers "confessing" their mistakes to their clients, since such admissions likely establish liability. The usual advice of insurers is, and some insurance policies may even purport to require you, to say nothing to the client that may in any way acknowledge that a mistake was made or that you are responsible for it. It is clear that your ethical obligation supersedes any contrary insurance provision. More importantly — from the view of the legal profession — in clients' eyes such stonewalling by you when discovered by the client is likely to be seen as an insult, a breach of the very trust they placed in you as a professional to solve their legal problem. Your failure to admit and apologize for your mistake is the very thing that incites a client to initiate a malpractice suit and bar grievance against you.

When you make the big mistake, complying with your ethical obligations under the RPCs takes great courage and trust on your part. Some lawyers may argue that in the "real world" you cannot afford to admit to your client that you made a big mistake because your client will likely sue you for malpractice, and that admitting your mistake is professional suicide. They may be right. But if you do not admit your mistake to your client, your relationship with your client is built on a lie and deceit, one wherein you are afraid that the truth will someday be known or discovered. By not telling your client, even where not ethically required to do so, you are in effect committing ethical suicide, choosing your own self-interests over those of your client, refusing to accept the responsibility for your mistake and refusing to be held accountable to your client and the legal profession. You can choose to preserve your own self-respect by truthfully and fully acknowledging to your client that you made the big mistake, recognizing that your livelihood is at stake. Or you can choose to live a life of looking after your own interests before those of your clients.

When admitted to the bar, we all took an oath to abide by the RPCs. That oath is not conditioned on compliance not having a personal cost to us. The ethical mandate to all of us is clear: we look after our clients' interests regardless of the cost to ourselves. A primary function of law is to hold persons accountable for their conduct. Lawyers as guardians of the law should, more than any other professionals, willingly be accountable for their conduct. Until we lawyers are ourselves accountable for our mistakes, we will neither receive nor deserve the respect of the public. By admitting our mistakes to our clients and taking the consequences, we are acting in the best traditions of the law and earn that respect.