A Lawyer’s Duty to Disclose Errors to the Client, 0617 COBJ, Vol. 46 No. 6 Pg. 39
| Author | Kendra Beckwith, J. |
Professional and Legal Ethics
Kendra Beckwith, J.
A Lawyer’s Duty to Disclose Errors to the Client
This article explains what constitutes an “error” triggering a lawyer’s duty of disclosure to the client under the Colorado Rules of Professional Conduct. The article also offers guidance as to how such disclosure should be made and addresses the relationship between an error and malpractice claim.
The lawyer–client relationship is sacred. It is built on trust and communication. Clients typically hire lawyers to do that which clients cannot: defend a criminal action, vindicate a contractual right, or seek redress for a painful injury. No lawyer wants to admit, much less disclose, that the lawyer’s error has harmed the client.
But too often—and with the best intentions—a lawyer will quickly claim error without proper analysis of the perceived error. Not only is this conduct not required by the Colorado Rules of Professional Conduct (Colo. RPC or Rules), but it can be devastating to the attorney–client relationship’s foundation.
This article provides an overview of the CBA Ethics Committee’s Formal Ethics Opinion 113: Ethical Duty of Attorney to Disclose Errors to Client (CBA Opinion 113).1 CBA Opinion 113 first gives an overview of the duty’s source and defines what does and does not constitute an error that must be disclosed to the client. It then provides guidance on how to disclose an error to the client, explains when informed consent is necessary, and addresses the relationship between errors and legal malpractice claims.
The Duty’s Source
Colorado RPC 1.4(a)(3), which requires lawyers to keep clients “reasonably informed about the status of a matter,” gives rise to the duty to disclose errors. This duty extends not only to keeping the client reasonably informed about the matter’s status, but also prevents a lawyer from withholding “information to serve the lawyer’s own interest . . . .”[2] Failing to disclose an error to the client may rise to the level of conduct involving dishonesty, fraud, deceit, or misrepresentation that may become actionable under Colo. RPC 8.4(c).3
But this begs the question: What constitutes an “error”? And, assuming the lawyer has made such an error, what constitutes adequate disclosure? This article addresses the CBA Ethics Committee’s analysis of when an error has occurred, and, assuming a lawyer has committed such an error, what constitutes adequate disclosure.
What Triggers the Duty to Disclose?
According to CBA Opinion 113, an error is “a breach of the duty of care that will likely result in prejudice to a client’s right or claim.”4 For purposes of whether a circumstance must be disclosed under Rule 1.4, the term “error” is misleading. Not every error requires disclosure. Indeed, “an overbroad interpretation of the ethical duty to disclose may needlessly undermine the trust and confidence essential to a healthy attorney–client relationship.”[5] Clients, like patients, do not want to know every time the lawyer or doctor “has doubts or second thoughts about any aspect of some ongoing treatment. . . .”6 The crux of the analysis, then, is “whether a disinterested lawyer would conclude that the error will likely result in prejudice to the client’s right or claim . . . .”[7]
This analysis recognizes that professional errors exist along a spectrum. At one end are the errors that keep lawyers awake at night: failure to file within the applicable statute of limitations, failure to serve a notice of claim within a statutory time period, or failure to timely file a notice of appeal.8
On the other end are errors in name only; that is, they may never cause harm to the client. These may include missing a non-jurisdictional deadline, neglecting a potentially fruitful area of discovery, or overlooking a theory of liability or defense.9 These errors do not trigger the duty to disclose because the harm resulting from them is not reasonably foreseeable, does not prejudice the client’s right or claim, or may be easily remedied by the lawyer taking corrective measures to avoid any prejudice.
In between these two ends of the spectrum lie the ”innumerable errors” that a lawyer...
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