Lawyers Must Inform Current

• Author: David L. Hudson Jr.
• Pages: 24-25

Lawyers Must Inform Current

Clients of Material Errors

No such duty to former clients

By David L. Hudson Jr.

Lawyers have a duty to in form current clients of

material errors c ommitted by them during the course

of representation, according t o a recently released ethics

opinion from the ABA’s Standing Committee on Eth ics

and Professional Responsibil ity. However, the opinion

also says that lawyer s do not have to inform former

clients of such material er rors.

Formal Opinion 481 explains th at this duty to

current clients is rooted i n Rule 1.4 of the ABA

Model Rules of Professional Conduct, which gover ns

a lawyer’s duty of communication. That r ule requires

lawyers to promptly inform cl ients of any decision or

circumsta nce for which a client’s informed consent is

needed. It also requires a law yer to “reasonably con-

sult” with the client about the mea ns of achieving the

client’s goals during representation and keeping the

client “reasonably

informed” ab out the

progression of the case.

According to the commit tee, the “guiding principle”

of Model Rule 1.4 is refl ected in languag e in Comment 5

of the rule: “The lawyer should f ulfi ll reasonable client

expectations for in formation consistent with the duty

to act in the client’s best intere sts, and the client’s overall

requirements as to the cha racter of representation.” This

means that a lawyer c annot “withhold information from a

client to serve the lawyer ’s own int erests or convenience.”

A CLARIFICATION CONUNDRUM

The opinion acknowledges that “determini ng whether

and when a lawyer must inform a client of a n error

can sometimes be di cu lt because errors exist along

a continuum.” It explains that the duty of inform ing

clients of errors applies when the error is considered

material.

The opinion explains that an er ror is material if “a

disinterested law yer would conclude that it is (a) reason-

ably likely to harm or prejudice a client; or (b) of such a

nature that it would reasonably c ause a client to consider

terminating the repre sentation even in the absence of

harm or prejud ice.”

“Many obviously materia l errors arise,” says Keith

Swisher, a professor of legal ethics at t he Universit y

of Arizona’s James E. Rogers College of Law. “For

errors potentially on the borderli ne [between material

and nonmaterial], the commit tee’s two-part defi nition

of materiality i s fairly expansive and will therefore

better protect clients.”

Some ethic s experts quest ion whether the defi nition

provides su cient guidance and have concer ns that it

may create more problems. “Despite the commit tee’s

laudable goal of providing more specifi c gu idance and

its conclusion that the standar d for determining what

is material is a n objective one, I think lawyers may still

struggle, prac tically, with what is material error,” says

Ellen Murphy, who teaches professional responsibil ity

at Wake Forest University School of Law.

Leslie C. Lev in, a professor at the University of

Connecticut School of Law, sees problems with t he

defi nition. “The problem with the fi rst defi nit ion of

‘material’—which is the ‘har m or prejudice’ component

—is that the opinion notes don’t give much meaningfu l

guidance to help the law yer determine how much harm

or prejudice triggers the duty to in form. The opinion

says it wants to give law yers more specifi c guidance,

but then really doesn’t provide it.” She also questions

“I THINK

LAWYERS MAY

STILL STRUGGLE,

PRACTICALLY,

WITH WHAT IS

MATERIAL ERROR.”

— ELLEN MURPHY

PHOTOGRAPH COURTESY OF WAKE FOREST LAW SCHOOL

24 || ABA JOURNAL JULY 2018

Ethics

Practice