Disclosing Mistakes in Light of Ethics Opinion 113 - April 2006 - Whoops!

• Publication year: 2006
• Pages: 89
• Citation: Vol. 35 No. 4 Pg. 89

35 Colo.Law. 89 Colorado Lawyer 2006.

2006, April, Pg. 89. Disclosing Mistakes in Light of Ethics Opinion 113 - April 2006 - Whoops!

The Colorado Lawyer
April 2006
Vol. 35, No. 4 [Page 89]

Departments and More
Whoops!
Disclosing Mistakes in Light of Ethics Opinion 113
by Walter N. Houghtaling

This department is sponsored by the Lawyers' Professional Liability Committee of the Colorado Bar Association to assist attorneys in preventing legal malpractice. The department welcomes submissions of articles and article topics. For more information, writing guidelines, or to submit an article or topic suggestion, contact Andrew McLetchie - (303) 298-8603,a_mcletchie@fsf-law.com; or Reba Nance - (303) 824-5320, reban@cobar.org.

Walter N. Houghtaling, a shareholder in the Denver firm of McConnell Siderius Fleischner Houghtaling & Craigmile LLC, focuses his practice on defending attorneys and insurance producers in professional liability matters - (303) 480-0400, whoughtaling@msfhc.com. He is a member and current co-chair of the CBA Professional Liability Committee

"Truth is rarely pure, and never simple."(fn1)

Making a mistake in the practice of law is statistically inevitable. Despite the fact that attorneys constantly expand their knowledge and update their skills, it is impossible for one to perform without error at all times. At some point in a legal career, a mistake of significant consequence to a client likely will be made. Upon discovery of the error by the attorney, the critical issues that must be addressed are whether the attorney has an ethical obligation to report or remedy the error and, if so, how the attorney should go about this.

Colorado practitioners have understood for decades that attorneys have a duty to self-report their errors or omissions to their clients as part of their continuing ethical obligations.(fn2) On November 19, 2005, the Ethics Committee of the Colorado Bar Association ("CBA") adopted Formal Ethics Opinion 113.(fn3) Ethics Opinion 113 formally addresses the long-standing recognition of the ethical duty of an attorney to disclose errors to clients.

Ethics Opinion 113 discusses the nature of the conduct triggering the need for disclosure, what to tell the client in the event disclosure is necessary, and conflicts of interest that may exist when an attorney continues to represent the client in spite of the error. This article, although not an exhaustive review of the topic, serves to provide some practical suggestions for dealing with the required disclosure. The practitioner is well served to review the Opinion in detail.

The Starting Point

Embarrassment and professional pride aside, the most perplexing part of self-reporting an error or omission usually is determining whether an error is of such magnitude that ethically it must be disclosed to the client. Practitioners who routinely handle legal malpractice cases can attest to the difficulty in establishing whether an act or omission is an error or a compensable mistake, and some may advise that the question remain unanswered until it is ultimately addressed by either the court or jury in a malpractice action. However, because ethical obligation (not ultimate resolution) is the issue here, the determination about disclosure must be made long before a decision maker in a civil action resolves the issue.

As explained in Ethics Opinion 113, errors fall on a continuum. Only where the error clearly prejudices a client's claim or rights does a duty to promptly inform the client exist. For...