ABA issues new guidance on what a lawyer should do when a mistake is made

The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released Formal Opinion 481 that addresses a lawyer’s duty to inform a current or former client when the lawyer made a material error.
Under Model Rule 1.4 of the ABA Model Rules of Professional Conduct, a lawyer is required to inform a current client of a material error. A material error is an error that a disinterested lawyer would conclude is reasonably likely to harm or prejudice the client, or an error that is of such nature that it would reasonably cause a client to consider terminating the representation. Many states have adopted a similar rule.

But Model Rule 1.4 does not address the lawyer’s obligation to a former client when the representation has ended and there is no continuing relationship between the attorney and client on that or other matters. New Formal Opinion 481 says in those cases an attorney has no professional obligation under Model Rule 1.4 to disclose the past error, however material it might be.

“Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client,” the formal opinion said. “Indeed, many lawyers would likely choose to do so for those or other individual reasons. Those are, however, personal decisions for lawyers rather than obligations imposed under the (ABA) Model Rules.”

To illustrate a material error involving a former client, the opinion points to a contract prepared for a client in 2015. Three years later, the matter is concluded, representation has ended and the party for whom the contract was prepared is not a client of the lawyer or law firm in any other matter. In using that three-year old agreement as a template to prepare a contract for a different client, the lawyer discovers a material error in the agreement. Model Rule 1.4 would not require notification of the former client and Formal Opinion 481 spells that out.

The opinion also examines the language of Model Rule 1.4 that require a lawyer to “promptly inform” current clients of material errors. “The ‘guiding principle’ undergirding Model Rule 1.4 is that ‘the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.’ A lawyer may not withhold information from a client to serve the lawyer’s own interests or convenience,” Formal Opinion 481 said.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Formal Opinion 481 and other ABA ethics opinions are available on the ABA Center for Professional Responsibility website.