The Ethical Obligation to Disclose Attorney Negligence
| Publication year | 1984 |
| Pages | 232 |
1984, February, Pg. 232. The Ethical Obligation to Disclose Attorney Negligence
Not only do attorneys have a duty to their clients, but they owe it to themselves, the Bar and the public to be frank, honest and candid when they know they have been negligent in representing a client.
Legal professionals are trained never to admit guilt or fault. The client comes to counsel for answers and help. Counsel then searches for technicalities to get the client "off the hook" by reading and rereading statutes and cases, looking for interpretations favorable to the client's situation. Counsel has worked long and hard to be able to advise clients on legal matters, so why should they be held to such a high standard of care? Shouldn't counsel be allowed to make mistakes now and then? Aren't lawyers also human?
The answer to these questions is that the very nature of legal work requires counsel to adhere to a high standard of care. It is because lawyers are knowledgeable in the law and its procedures that the public expects their advice and advocacy. To maintain this public trust, or regain this trust, lawyers must not only let their clients know they are there to help, but also that they too make mistakes.
This article discusses the implied duty of attorneys to disclose their own negligence and how to improve attorney-client relationships so that malpractice claims are not made.
Before there can be a duty to disclose, there must be an attorney-client relationship. The commencement of this relationship has been defined in many ways by many jurisdictions. Some decisions have held that the attorney-client relationship may commence upon a mutual understanding of the parties that the attorney will render professional services, while others have indicated that an attorney-client relationship cannot exist until a contract creating the relationship and fixing the fee is entered into.(fn1)
In a majority of American jurisdictions, establishing the existence of a professional relationship is not conditioned upon evidence of either the payment of fees or a formal contract of employment. In Illinois, however, the rule apparently remains that payment of a retainer or fee is necessary to create an attorney-client relationship.(fn2) In Miller v. Metzinger, the California appellate court held that consultation with an attorney is prima facie evidence of an attorney-client relationship.(fn3)
Termination of the attorney-client relationship cannot take place unless and until the client clearly understands or reasonably should understand that the relationship has ended. There is no clear-cut line drawn by the courts as to the termination of the attorney-client relationship; it is determined on a case-by-case basis.(fn4) The "continuous representation" rule, proposed and adopted in New York in 1963, has been applied to both litigation and continuing legal advice not involving litigation. The premise of the rule is to avoid unnecessary disruption of the attorney-client relationship, and thus to avoid speculative malpractice litigation.(fn5)
A claim of malpractice generally cannot be made until termination of the relationship, but the effect of the continuous representation rule precludes a cause of action. Therefore, the inquiry is not whether there still exists an attorney-client relationship, but when the representation of the specific matter terminated.(fn6)
The attorney-client relationship creates a sacred fiduciary duty as a matter of law, which increases and enhances the duty owed by the attorney to the client.(fn7) Since the relationship is fiduciary in nature, the attorney must exercise the most scrupulous honor, good faith and fidelity toward the client.(fn8)
The California Supreme Court also found a duty of disclosure, stating:
Dealings between practitioner and client frame a fiduciary relationship and the duty of fiduciary embraces [an] obligation to render a full and fair disclosure to beneficiary of all facts which materially affect his rights and interests.(fn9)
Thus, the attorney-client relationship embodies the concept of the client's trust in his fiduciary, the attorney. Inherent in that trust is the duty to advise the client fully, frankly and truthfully of all significant material.(fn10) In Parsons v. Continental National American Group, the court suggested that the "standards of the legal profession require undeviating fidelity of the lawyer to his client; no exceptions can be tolerated."(fn11)
It has long been an accepted rule of conduct that an attorney should be ready and willing...
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