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    Wisconsin Lawyer
    July 16, 2021

    Ethics: Dealing with Errors During Representation

    The primary considerations whenever a lawyer makes a mistake during a representation are whether the problem can be fixed and whether the client should be contacted before or after the lawyer takes steps to remedy the problem.

    Dean R. Dietrich

    Question

    I think I made a mistake while representing a client in a litigation matter. What should I do to address this mistake?

    Answer

    You should start by recognizing that all lawyers will make mistakes at some time as part of their representation of clients. Some mistakes will be significant and others will have very limited effect.

    Dean R. DietrichDean R. Dietrich, Marquette 1977, of law firm of Dietrich VanderWaal Law Group SC, Wausau, is past chair of the State Bar Professional Ethics Committee.

    The primary focus when a mistake is made is for the lawyer to communicate with the client and explain the situation. The requirements of SCR 20:1.4 make it clear that a lawyer must communicate with a client regarding the circumstances of the representation and explain facts and circumstances that directly affect the representation.

    Legal commentators suggest that the following steps should be considered by the lawyer when needing to communicate with a client about a mistake:

    • Promptly inform the client.

    • Consult with the client about how the client’s objectives are to be accomplished.

    • Keep the client informed about the status of the matter.

    • Explain the matter to the extent necessary to permit the client to make informed decisions regarding the representation.

    • Consult with the client about any relevant limitation on the lawyer’s conduct.

    A major consideration when communicating with a client about a mistake is the nature of the mistake and the effect it might have on the success of the representation. It is often best that the lawyer takes steps immediately to fix the situation or to communicate with the client if the situation cannot be fixed. A typical example is when a lawyer sends a document to opposing counsel with important information that was intended to be sent to the client. The lawyer needs to take immediate steps to address the information that has been sent to opposing counsel and seek protective orders regarding that information. The lawyer must also communicate with the client to explain what has transpired and to explain how the lawyer is acting to address the mistake.

    This type of communication with the client is likely to be the most effective way for the lawyer to communicate about the mistake and continue to represent the client. Hiding the situation will only cause greater problems for the lawyer and a likelihood of the client discharging the lawyer when the information becomes known.

    All lawyers should recognize that mistakes can happen. Dealing with errors in a reasonable and expeditious fashion is the best strategy for lawyers and required under the duty to communicate with clients.

    Ask Us!

    Questions about ethics, practice management, or the Wisconsin Lawyers Assistance Program (WisLAP)? Confidential assistance is a phone call or click away:

    Ethics Hotline: (800) 254-9154, or (608) 229-2017 9 a.m. to 4 p.m., Monday through Friday.

    Practice411: (800) 957-4670, or practicehelp@wisbar.org

    WisLAP 24-hour helpline: (800) 543-2625

    » Cite this article: 94 Wis. Law. 36 (July/Aug 2021).





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