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    What to Do After Making a Serious Error

    When a lawyer makes a serious error that adversely affects a client’s case, the lawyer must take certain steps. The authors discuss a lawyer’s obligations under Wisconsin’s professional conduct rules and offer practice suggestions on how to handle difficult situations.

    Timothy J. Pierce & Sally E. Anderson

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 2, February 2010

    Head in 
Sand

    Every lawyer makes mistakes, some serious and some not. Most of the mistakes lawyers make in representing clients are minor in the sense that they are unlikely to adversely affect the client’s case and normally do not require extraordinary action on the part of the lawyer. However, when a lawyer does make a serious error, there are certain steps the lawyer must take, such as informing the client and evaluating whether the lawyer may continue to represent the client. This article discusses a lawyer’s obligations under Wisconsin’s Rules of Professional Conduct for Attorneys (the “Rules”) found in Supreme Court Rule (SCR) Chapter 20 and offers some practical suggestions on how to handle difficult situations.
    Ethical Duties 

    The Duty to Inform the Client

    Pursuant to SCR 20:1.4, all lawyers have duties to keep clients reasonably informed about the status of their matters and to explain matters to the extent reasonably necessary to permit clients to make informed decisions about their matters. When a lawyer commits an error giving rise to a possible malpractice claim, the client must make important decisions as to whether to pursue the possible claim against the lawyer, immediately or at a later date, and whether to continue the representation, and the lawyer must provide the client with information sufficient to ensure that the client is reasonably informed about these matters. Rule 1.4 has been consistently interpreted by courts in Wisconsin and in other states as requiring lawyers to inform clients whenever the lawyer makes a serious error in the course of the representation.1 Likewise, ethics opinions from Wisconsin and other jurisdictions similarly hold that lawyers must inform their clients of serious errors.2

    Another source for this duty is SCR 20:1.7, which states that a lawyer has a conflict of interest if there is a significant risk that the lawyer’s personal interests may materially limit the representation of a client. As discussed below, the commission of a serious error normally gives rise to such a conflict and any continued representation requires the client’s informed consent. SCR 20:1.4(a)(1) requires the lawyer to promptly inform the client of any circumstance requiring the lawyer’s informed consent and thus a lawyer facing such a conflict must promptly explain the situation to the client.

    It is thus beyond dispute that a lawyer has an affirmative duty to inform the client when the lawyer has made a serious error.

    Determining What Is a ‘Serious Error’

    As discussed above, lawyers have an unequivocal duty to inform clients of serious errors. In analyzing how a lawyer is to fulfill this duty, the first task is to attempt to define what is meant by the term serious error. There is no definition of this term in the Rules, nor in Wisconsin case law, but this concept has been addressed briefly in ethics opinions. In Wisconsin Ethics Opinion E-82-12, the State Bar’s Committee on Professional Ethics opined that a lawyer has an obligation to inform a client of an omission that may give rise to a malpractice action. Other states have taken a closer look at the issue.

    In Ethics Opinion 113 (2005), the Colorado State Bar’s ethics committee addressed the issue at length:

    “The more difficult determination is whether a particular error triggers an ethical duty to disclose it to the client. This determination is important because an over-broad interpretation of the ethical duty to disclose may needlessly undermine the trust and confidence essential to a healthy attorney-client relationship. Also, the ethical duty to disclose should remain primarily a basis for a lawyer’s self-assessment, not another arrow in the quiver of tactics employed in legal malpractice cases. Whether a particular error gives rise to an ethical duty to disclose depends on whether a disinterested lawyer would conclude that the error will likely result in prejudice to the client’s right or claim and that the lawyer therefore has an ethical responsibility to disclose the error. The failure to disclose an error does not (and should not), in and of itself, give rise to a cause of action against the lawyer, nor does it (or should it) create a presumption that a legal duty has been breached.

    “Professional errors exist along a spectrum. At one end are errors that, as stated above, will likely prejudice a client’s right or claim. Examples of these kinds of errors are the loss of a claim for failure to file it within a statutory limitations period or a failure to serve a notice of claim within a statutory time period. The lawyer must promptly inform the client of an error of this kind, if a disinterested lawyer would conclude there was an ethical duty to do so, because the client must decide whether to appeal the dismissal of the claim or pursue a legal malpractice action. Another example is the loss of a right of appeal for failure to file a timely notice of appeal. However, as discussed more fully below, the lawyer should be given an opportunity to remedy the error before disclosing it to the client.

    “At the other end of the spectrum are errors and possible errors that may never cause harm to the client, either because any resulting harm is not reasonably foreseeable, there is no prejudice to a client’s right or claim, or the lawyer takes corrective measures that are reasonably likely to avoid any such prejudice. For example, missing a nonjurisdictional deadline, a potentially fruitful area of discovery, or a theory of liability or defense may constitute grounds for loss of sleep, but not an ethical duty to disclose to the client. As one commentator remarked regarding similar circumstances, ‘Unless there are steps that can be taken now to avoid the possibility of future harm, there is probably no immediate duty to disclose the mere possibility of lawyer error or omission.’ Lawyers should be given the opportunity to remedy any error before disclosing the error to the client. The later assertion of a legal malpractice claim does not mean that the allegedly negligent lawyer breached a duty to disclose the error to the client and the failure to disclose the error should not be construed as an independent claim against the lawyer. Whether a lawyer has an ethical duty to disclose depends on the facts and circumstances known to the lawyer once he or she has realized the error, not those that appear only through the prism of hindsight.

    “In between these two ends of the spectrum are innumerable errors that do not fall neatly into either end of the spectrum and must be analyzed on a case-by-case basis. For example, it is ordinarily not necessary to disclose questions of professional judgment where the law was unsettled on an issue or the attorney ‘made a tactical decision from among equally viable alternatives.’ Under the doctrine of ‘judgmental immunity,’ these types of decisions are not, as a matter of law, considered errors, below the applicable standard of care, or negligent conduct. However, when reasonable lawyers may disagree about whether the state of the law was unsettled or the available alternatives were equally viable, the lawyer should err on the side of discussing the available alternatives with the client before pursuing a course of action. The lawyer’s choice between equally viable alternatives should not be considered an error as defined in this opinion. Examples of potential errors that may give rise to an ethical duty to disclose include the failure to request a jury in a pleading (or pay the jury fee), the failure to include an acceleration provision in a promissory note, and the failure to give timely notice under a contract or statute. The Committee agrees with the New York State Bar Association 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.’” (Footnotes omitted.)

    The Restatement (Third) of the Law Governing Lawyers, §20, comment c., takes the position that a lawyer has an obligation to inform the client if the lawyer’s conduct gives the client a “substantial malpractice claim” against the lawyer.

    Timothy J. Pierce Sally E. 
Anderson

    Timothy J. Pierce, U.W. 1992, is State Bar of Wisconsin ethics counsel, Madison, and can be contacted at org tpierce wisbar wisbar tpierce org.

    Sally E. Anderson, Marquette 1979, is vice president – claims at Wisconsin Lawyers Mutual Insurance Co., Madison, and can be reached at com sally wilmic wilmic sally com.

    All the above referenced sources agree that the lawyer’s duty to inform the client of the lawyer’s mistake arises whenever that mistake may give rise to a colorable malpractice claim against the lawyer. One of the elements of any malpractice action is proof of damages, and from this it is clear that the lawyer’s duty arises whenever the lawyer’s mistake poses a serious risk of damaging the client’s matter. Put another way, the lawyer must report an error whenever that error poses a serious risk of imposing a quantifiable loss on the client. Such a quantifiable loss may consist of loss of a legal right, loss of money, loss of a claim, or another measurable loss.

    It is evident from the discussion above that defining exactly what errors require reporting to clients is not always an easy task. What is most important, however, is to remember that the reason a lawyer must inform a client of a serious error is that SCR 20:1.4(b) requires lawyers to provide clients with enough information to permit the client to make informed decisions about the matter. Thus, in considering whether an error must be reported to a client, the lawyer should look at the situation from the perspective of the client and consider whether the client would reasonably consider the information important in making decisions about the matter and in deciding whether to continue the lawyer-client relationship. In making such a decision, the lawyer should bear in mind that courts and disciplinary agencies will almost certainly err on the side of finding a duty to disclose in close calls.

    What to Tell the Client

    In considering what to tell the client about the error, the lawyer should bear in mind the lawyer’s obligation under SCR 20:1.4(b) to explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the matter. The lawyer therefore should inform the client of the nature of the error and the reasonably foreseeable consequences of the error for the client’s case or matter and that the client may wish to consult with independent counsel about any possible legal consequences for the error.

    There is some disagreement as to whether the lawyer is required to explicitly disclose to the client that a malpractice claim may lie against the lawyer. For example, Wisconsin Ethics Opinion E-82-12 (1982) and New York Ethics Opinion 734 (2000) take the position that the lawyer must disclose the existence of such a claim, while Colorado Ethics Opinion 113 (2005) takes the position that a lawyer need not explicitly inform the client that a malpractice claim may exist. The Rules themselves are silent on this issue, and there is no answer in Wisconsin case law. Given the clear duty on the part of lawyers to inform clients of serious errors and their consequences, it is recommended that a lawyer inform the client, at the least, that sometimes errors can give rise to claims against lawyers, and that the client must seek legal advice from other counsel as to whether that client may have any viable claims against the lawyer. Whether the word “malpractice” is actually uttered by the lawyer is not necessarily determinative of whether the lawyer has fulfilled her duties under SCR 20:1.4, but the Rule does seem to require making the client aware that the client may have some legal options against the lawyer.

    The lawyer need not, and should not, confess liability to the client – the lawyer should remember that this communication could well be presented as evidence in a subsequent malpractice action. While lawyers have an obligation to inform the client of the error, the lawyer has no obligation under the Rules to admit liability. The lawyer should also refrain from offering advice with respect to the viability or advisability of pursuing any potential malpractice claim. To render such an opinion would present a clear conflict for the lawyer because of the lawyer’s clear self-interest.3

    Further, if the client brings up the possibility of filing a grievance against the lawyer, the lawyer should again express no opinion on the propriety of doing so. All lawyers do, however, have a duty, pursuant to SCR 21:1.15(3), to refer members of the public wishing to file a grievance to the Office of Lawyer Regulation (OLR), so the lawyer should refer a client who expresses a desire to file a grievance to the OLR.

    Promptly Inform Your Malpractice Carrier

    There is obviously no ethical duty to inform one’s malpractice carrier of a serious error, but almost every malpractice policy carries a clause requiring prompt notification to the carrier of any event that may give rise to a claim. Failure to abide by such a clause can, and sometimes does, result in denial of coverage.

    If time and circumstances permit, a lawyer may be wise to speak with his or her malpractice carrier before informing the client or taking other action with respect to the error. Carriers may be in a position to offer helpful guidance to the lawyer in minimizing the consequences of any serious error. The lawyer’s primary duty, however, is to the client and when time is important, the lawyer should not delay informing the client for any reason.

    Determining Conflict of Interest

    Once a lawyer has discovered that she has made a serious error in a client’s matter, the lawyer must determine whether the lawyer would face a conflict of interest in continuing to represent the client and, if so, whether that conflict is waivable. Pursuant to SCR 20:1.7(a)(2), a lawyer has a conflict of interest if there is a significant risk that the lawyer’s representation of the client would be materially limited by, among other things, the lawyer’s own interests.

    On first considering the issue, it would seem that the interests of the lawyer and client in such a situation would be wholly consistent. Both the lawyer and the client have a strong interest in minimizing the consequences of the error and in achieving a favorable result in the underlying case, and thus there seemingly is no conflict. It has, in fact, been reasonably argued that no lawyer is more motivated to achieve an outstanding result for the client than the one who will likely face the serious consequences of her own error if she fails to do so.4

    Further consideration, however, reveals many ways (some subtle, some not so subtle) in which the lawyer’s interests can be at odds with the client’s. One commentator5 describes some of the possibilities:

    “Once the lawyer’s conduct has given rise to a substantial malpractice claim by his client, his personal interests are adverse to his client’s. At first blush, no conflict is apparent since both the lawyer and the client have an interest in obtaining a favorable outcome. But closer inspection reveals that the lawyer’s interest is not necessarily aligned with the client’s. The lawyer might want to settle the litigation quickly in order to try and hide his mistake or minimize the damages available to the client in a subsequent malpractice case. Even more likely, the lawyer might want to litigate the case to the end to vindicate his (or his law firm’s) original advice while the client’s interest is best served by reaching the quickest and least expensive resolution of the litigation. Because of his tunnel vision, the attorney is not in a position to realistically evaluate the claim asserted against the client or to give independent legal advice that is in the best interest of the client. Rather, the conflicted lawyer becomes fixated on vindicating his or his firm’s own position instead of acting in the best interests of the client. Indeed, one of the comments to this rule makes this clear: ‘If the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.’” (Footnotes omitted.)

    While it is possible in unusual circumstances that such a situation might not present a conflict of interest, a lawyer who commits a serious error should normally view continued representation of the client as posing a conflict. The lawyer and the lawyer’s firm clearly have a significant interest in self-protection at that point and it is only in unusual circumstances that the lawyer could reasonably conclude that such self-interest would not affect the representation. In considering such conflicts, it is important to remember that all such conflicts are imputed to every lawyer in the firm and that this imputation cannot be defeated by screening.6

    Faced with such a conflict, the question then becomes whether the conflict is waivable. For such a conflict to be waivable, the lawyer must, pursuant to SCR 20:1.7(b)(1), be able to reasonably conclude that the lawyer can provide competent and diligent representation notwithstanding the conflict. In New York State Ethics Opinion 635 (1992), the New York State Bar Association opined, “Even with full disclosure, client consent would be ineffective to cure the conflict if, for example, the lawyer had been personally involved in the acts of malpractice while associated with his former firm, or if the lawyer had been a partner in the firm at the time the acts were committed.” This view, however, is not universal, and there is no law in Wisconsin declaring all such conflicts unwaivable.

    Colorado Ethics Opinion 113 (2005) discussed continued representation under such circumstances:

    “Whether or not continued representation is permissible, either because there is no potential conflict or the potential conflict is waivable, depends on the nature of the error. In many if not most circumstances, the interest of the attorney in avoiding liability will be consistent with the interest of the client in a successful representation. Withdrawal is typically not required if the error likely can be corrected during the course of the representation; the error is not likely to result in harm to the client’s cause; the error does not prejudice the client’s right or claim, or the error does not necessarily constitute an error at all. As one court stated:

    ‘Many errors by a lawyer may involve a low risk of harm to the client or low risk of ultimate liability for the lawyer, thereby vitiating the danger that the lawyer’s own interests will endanger his or her exercise of professional judgment on behalf of the client. Even if the risk of some harm to the client is high, the actual effect of that harm may be minimal, or, if an error does occur, it may be remedied with little or no harm to the client. In those circumstances, it is possible for a lawyer to continue to exercise his or her professional judgment on behalf of the client without placing the quality of representation at risk. In re Knappenberger, 90 P.3d 614 (Ore. 2004).’” (Footnotes omitted.)

    In matters involving the gravest errors that either extinguish or severely damage the client’s claim, continued representation will either be pointless or unreasonable. However, in cases where the damage is not as severe or immediate, continued representation is often possible with the client’s informed consent. In such situations, the lawyer who committed the error may often be in the best position to ameliorate its consequences and the client may reasonably not wish to bear the expense of transitioning to new counsel. If the lawyer reasonably believes that the conflict is waivable, and the client wishes to continue the representation, the lawyer must obtain the client’s signature on a written conflict waiver that meets the informed consent standard. SCR 20:1.0(f) defines informed consent as follows: 

    “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

    The Comment, paragraph [6], to SCR 20:1.0(f) states, in part, as follows:

    “[6] … The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel….”

    Based on the above discussed sources, it can be said that informed consent has three essential elements:

    1) Explanation of facts and circumstances. In the context of a conflict waiver, this would involve, at a minimum, an explanation of what the conflict is and why it’s a conflict. If the conflict arises from a lawyer’s serious error in the representation of the client, this would normally involve an explanation of the error, its reasonably foreseeable consequences, and the fact that the lawyer and the lawyer’s firm now have an interest in self-protection that will not necessarily align with the client’s interests, such as when the client may wish to preserve a malpractice claim against the lawyer, who wishes to settle the underlying case to minimize the lawyer’s own damages.

    2) An explanation of the material risks and disadvantages of agreeing to the proposed course of conduct. This is perhaps the most important aspect of informed consent and the most difficult for lawyers. It means that the lawyer must explain in plain language the downside to the client of agreeing to the waiver, or, as described by one court, the lawyer must describe the nature of the conflict in such detail so that the affected clients can understand why it may be desirable to withhold that consent.7 Put another way, the lawyer should point out the risks to the client that the lawyer would point out if the lawyer had been retained specifically for that purpose.8 It is understandably uncomfortable for the lawyer seeking the waiver of a conflict to tell the person why it might be a bad idea to give the very consent the lawyer is seeking. Nonetheless, the Rules require it.

    Any explanation of material risks and disadvantages to the client is necessarily dependent on specific facts and circumstances. When the conflict arises from the lawyer’s own serious error, this will normally require an explanation of any way in which the consequences of the specific error may affect the lawyer’s representation of the client and the more general ways (some of which are discussed above in this section) in which a lawyer’s own self-interest may affect the representation. The risk that is present in all such situations is that, because the lawyer’s independent professional judgment is now compromised by the lawyer’s self-interest, the lawyer’s advice to the client with respect to important matters such as whether to settle or proceed to trial, may well be affected by that self-interest.

    3) An explanation of available options and alternatives. This final element of obtaining informed consent in the context of a conflict waiver is normally fairly straightforward. In the case of a conflict arising from the lawyer’s own error, it typically would involve explaining that the client has a right to conflict-free representation and may refuse consent to the conflict waiver and seek out unconflicted counsel, thus ending the representation, and that the client has the right to confer with other counsel with respect to the waiver.

    Finally, the question of whether the lawyer can continue the representation is not the same as whether the lawyer should. A lawyer may reasonably view a conflict as waivable and reasonably believe that continuing the representation may benefit the client, yet the lawyer-client relationship may be so damaged and the client’s distrust of the lawyer so strong (or vice versa) that it may be unwise to continue the relationship. Other factors, such as a large balance of unpaid fees, may factor into this equation. If the lawyer-client relationship is terminated, irrespective of the reason, the lawyer must be mindful of the lawyer’s responsibilities under SCR 20:1.16 (Declining or Terminating Representation), such as prompt surrender of the file to the client.

    Taking Remedial Actions

    Notwithstanding the existence of any conflict of interest, a lawyer who commits a serious error should not hesitate to take prompt remedial action if necessary to protect the client’s interests and if there is no time to consult with the client. If time is not of the essence, however, the lawyer must first address the likely conflict of interest. This is the case in most instances, and normally the lawyer should not act without consulting with the client. Therefore, in the wake of a serious error by the lawyer, the lawyer must assess the situation and determine whether immediate action is required to protect the client’s interests. If not, the lawyer should first fulfill the lawyer’s responsibilities to inform the client and address any conflict of interest.

    Settling a Potential Claim With a Client or Unrepresented Former Client

    SCR 20:1.8(h) provides as follows:

    (h) A lawyer shall not:

    (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement; or

    (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith; or

    (3) make an agreement limiting the client’s right to report the lawyer’s conduct to disciplinary authorities.

    Thus, the Rules do allow a lawyer to settle a potential malpractice claim with an unrepresented client or former client, provided that the lawyer first advises the client that the client should seek independent legal advice and provides the client a reasonable opportunity to do so. What the lawyer may never do, under any circumstances, however, is to seek to gain the client’s agreement not to file a grievance against the lawyer.

    Self-reporting

    Lawyers in Wisconsin have no duty to self-report possible misconduct to the OLR, so there is no need to self-report serious errors to the disciplinary authorities. The only self-reporting duties in Wisconsin are with respect to criminal convictions, which pursuant to SCR 21:15(5) must be reported to the OLR within five days, and public discipline in another jurisdiction, which pursuant to SCR 22.22(1) must be reported to the OLR within 20 days of the date of the disciplinary order.

    Suggestions from a Malpractice Carrier 

    Dealing with your legal malpractice insurer adds some different concerns to the ethics considerations summarized above. Your carrier recognizes your duties to your client. Those come first. But for you and your insurer, the issue of a “serious” or “substantial” error doesn’t matter much.

    The crux of the decision to contact your carrier about circumstances percolating with a client is relatively simple: Do you want coverage if this matter ever becomes a claim? The question isn’t even whether this is a claim for which your client will recover damages. Defending a claim, even a frivolous claim, is expensive and takes time. You have your insurance because, as a professional, you want to be sure that an error you make doesn’t cost your client. You also have it to pay your defense costs should an ill-founded claim be made against you. It’s important to understand how this plays out in your interaction with your insurer.

    Call Your Carrier to Discuss Claims and Potential Claims

    Mistakes are made in every law office, even yours. Many of these errors will never be discovered. For instance, the mortgage recorded in the wrong county is no problem unless the debtor fails to pay in a timely fashion. If all payments are made as scheduled, it is highly unlikely anyone will discover there was ever a problem. Problems also can arise during representations that make you question whether actions you took were the right ones to best advance your client’s interests.

    Ask your carrier how it views your calls to discuss potential issues. Your carrier should have someone knowledgeable available to discuss these matters and such discussions should have no impact on premium or insurability. Instead, the insurer should provide the lawyer a safe place to explore the potential problem and any ramifications and should trigger coverage under the appropriate policy so that coverage is protected if the matter becomes a claim.

    Protect Your Coverage

    Lawyers’ professional liability policies (LPL) are claims-made policies, not occurrence policies. Renewals do not relate back to the initial coverage date; instead, each year is a separate term and policy. This is especially important to understand because of the reporting requirements under the policy.

    An LPL policy provides coverage when two things happen during the current policy period.

    1. You first learn of a claim or potential claim that may be made against you, and
    2. You give notice to your insurer about a claim or potential claim during the policy period. (Generally, the notice must be in writing.)

    Thus, if you learn of a potential claim, but wait to give notice until you receive an official written demand or a pleading naming you as a defendant, you may have waited beyond the policy period and jeopardized your coverage. It is possible to have an LPL insurance policy during each year of your practice but to forfeit your coverage because you reported a matter too late – that is, you reported it during a different policy period than the period for the policy that was in effect when you first learned of the claim or potential claim. While simply having a policy in effect when the error occurred would be enough if the policy were an occurrence policy, the two rules above must be followed for there to be coverage under your claims-made LPL policy.

    Report claims and potential claims. The claim part is easy: If someone makes a demand for money or serves a complaint because you made an error or the client thinks you made an error, a claim has been made and you should provide written notice to your carrier. But there are other instances when a claim is possible but hasn’t yet been made. Policies may refer to this as a “potential claim,” a “claim incident,” or a “pre-claim incident,” but the concept is that there has been a circumstance, act, error, or omission in rendering professional services that could become the basis of a claim. Most policies impose an objective standard on these facts: that is, the circumstance, act, error, or omission is one that a reasonably prudent lawyer would expect to become the basis of a claim. If you want coverage for something that could grow out of those circumstances, report the matter under the policy in effect when you learn of the problem. If you have to wonder about whether it is appropriate to call your carrier, it is time to make the call.

    Taking Remedial Action

    While the ethics rules may provide some leeway for an attorney to attempt to rectify a problem, your legal malpractice insurance policy may provide you less latitude. In any event, you want your insurance company on board with what you’d like to do, and you want to be sure that the appropriate policy is triggered if the repair doesn’t work. It doesn’t matter that you think you can fix the problem. Report it. Then, if the fix doesn’t work, you know you triggered your policy. It doesn’t matter if the client says, “Don’t worry, I’ll never make a claim against you, my friend.” Report the matter. Clients (even friends) change their minds. It doesn’t matter if you think the client is just wrong and the client’s case would never be successful. Report it.

    At the time of reporting, one of the things your carrier should provide is perspective. When you are at risk, your perspective may get a little blurred. Many lawyers insist (at least initially) that they share a common goal with the client, now a potential legal malpractice claimant. Since there is this unity of interest, why not continue the representation? Both the lawyer and the client want the dismissed case re-opened, so why shouldn’t the lawyer who was a day late filing the brief in court make the motion for reconsideration? Or better still, you think the court was simply wrong and an appeal will certainly take care of the problem. While it might be appropriate in some cases for the lawyer to continue with the repair effort (after appropriate disclosure and with the client’s written consent), any lawyer who puts himself into this position must understand that the trust so important to the attorney-client relationship will have been dealt a huge blow, and maybe an irreparable blow, when the client learns of the problem. The circumstances will look different (and most often less united) as the matter progresses. Any lawyer continuing with a repair situation must accept the fact that her work will be second-guessed at every turn. Also consider that if you attempt a repair without first disclosing the problem to the client, it suddenly looks to the client as if you have engaged in a cover-up. While many clients understand that lawyers are human and things can go wrong, a client who thinks a lawyer is trying to cover up a mistake is likely to pursue a matter with renewed vigor. Most important is that what looked like a united front at the start soon unravels if things don’t go perfectly from that moment on. The unfortunate fact is that this world seldom provides perfection.

    What the Carrier May Advise

    There is no difference between what the ethics rules say and what a carrier is likely to advise about what to tell the client. The carrier may weigh in on how to tell the client. The best rule is the following: For a serious problem (and after you have talked about this with the insurer), make arrangements to meet with the client face-to-face. Explain the problem directly: “I believe a three-year statute of limitation applied to your case. I diaried your file incorrectly in our office so that the three-year period expired last month. I am very sorry this happened.” Apologize. Tell the client he or she should consult with another lawyer about the matter, because it is possible there may still be remedies available (albeit perhaps against you), and offer to cooperate in the file transfer. Then, write a letter to the client confirming that discussion, outlining the problem, your apology, your advice that your client consult another lawyer about the matter, and your promise to transition the file. Unless the mistake is so clear that there is no question about your error causing the client’s damage, your discussion should probably not say you have “committed malpractice.”

    Here is a guarantee: You will feel vastly better about the problem as soon as you have made this disclosure to your client. You also may have established a very clear date to start the statute of limitation running. After that, it is up to the client.

    If you, your carrier, and your client all believe this is one of those cases in which you are the best situated to continue the representation, the waiver of conflict to allow that continuation must be obtained in writing after full disclosures have been made to the client.

    Next Steps

    Organize your file and review it carefully. Keep it intact. Keep a copy when you are given the authority to turn it over to new counsel. Tell your carrier what you find or recall that might make the situation more difficult or perhaps better to deal with. Don’t wait to find notes that exonerate you after substantial negotiation has taken place in your claim.

    Don’t freeze, fall on your sword, or ignore the matter and hope it will go away. Sleeping, drinking, and procrastination make this process harder and worse.

    Maintain your professionalism. You may need to talk about feelings of anger against that miserable, calculating, demanding, unscrupulous, unappreciative client. It’s best not to vent to the client, your staff, or the world at large. The Wisconsin Lawyers Assistance Program (WisLAP), available at (800) 543-2625, and your claims adjuster are appropriate places for you to vent those feelings.

    As one lawyer said, having a legal malpractice claim made against you is the quickest way to increase your blood pressure and lower your IQ. But there is a big positive in all of this. Working through a serious claim should make you a better lawyer. It also should make you more responsive to the feelings your clients experience when dealing with their legal matters. Having a claim is a learning experience. Hopefully, the tuition will be reasonable.

    Endnotes

    1See Disciplinary Proceedings against Broadnax, 208 Wis. 2d 120, 159 N.W.2d 595 (1997); In re Higginson, 664 N.E.2d 732 (Ind. 1996).

    2See Wisconsin Ethics Op. E-82-12 (1982); Colorado Ethics Op. 113 (2005); New York Ethics Op. 734 (2000); New York City Ethics Op. 1995-2 (1995).

    3It is also appropriate to view the client as an unrepresented person with interests adverse to the lawyer with respect to any potential claim against the lawyer. In such circumstances, SCR 20:4.3 prohibits the lawyer from giving any advice about the possible claim other than to seek the advice of other counsel.

    4See D. Karpman, A Twilight Zone of Inharmonic Convergence, Calif. B.J. 20 (February 2004).

    5See Benjamin P. Cooper, The Lawyer’s Duty to Inform His Own Client of His Own Malpractice, 61 Baylor L. Rev. 174 (Winter 2009).

    6See SCR 20:1.10.

    7Florida Ins. Guaranty Ass’n v. Carey Canada Inc., 749 F. Supp. 255 (S.D. Fla. 1990).

    8Lawyers must be careful to avoid stepping over the line and rendering legal advice to former clients or prospective clients from whom the lawyer is seeking a conflict waiver. SCR 20:4.3 forbids a lawyer from giving legal advice to an unrepresented person whose interests are in conflict with the interests of the lawyer’s client.  




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