As a rule—and despite some claims to the contrary—lawyers are human. And as things go, humans make mistakes. Ergo, lawyers should expect, at some point, to make mistakes.
The question then becomes: What should you do when you make a mistake? What legal and ethical obligations do you have to report it? Can you simply try to fix it? No one wants to admit their mistakes, but addressing yours the right way may keep you from greater harm down the road.
Rule 1.4 and the disclosure of errors
So far as reporting goes, there’s what you must do, and there’s what you may want to do. Under the California Rules of Professional Conduct, you have a duty to communicate any significant developments. This includes any significant errors you make during your representation of current and ongoing clients.
Naturally, this begs the question: What counts as a significant error? The ABA addresses the communication of material errors in Formal Opinion 481, and it reminds us that errors can run along the whole spectrum from insignificant to catastrophic.
It’s fairly obvious you need to report mistakes such as the failure to file a timely appeal, and it’s equally obvious that you don’t need to worry about typos that will have zero impact on your client’s outcome. But the stuff in-between can be trickier. Here, the ABA states you should consider two standards for a material error:
- Whether another lawyer might reasonably find the error would “harm or prejudice” your client
- Whether the error might reasonably prompt your client to look for counsel elsewhere, regardless of harm
The ABA’s discussion of the standard offers additional insight, suggesting that errors may be material when:
- They would lead to your client’s financial loss or harm
- They would significantly delay your client’s objectives
- They would harm your client’s legal position
These are, however, merely guidelines for evaluating whether you might think of your error as “material.” They don’t define your obligation under the Rules of Professional Conduct. Also, they don’t apply to former clients. As both the California State Bar and ABA point out, Rule 1.4 applies to your current clients. It doesn’t compel you to report your mistake to your former clients, even if you may have other reasons to do so.
When and how to report
It’s clear that Rule 1.4 describes your duty to communicate your errors and to do so in a timely fashion. However, you needn’t simply blurt out that you made a mistake. Prompt communication is relative to the matter at hand, and you may have time to formulate an effective response to your discovery.
If you can, you might offer a solution at the same time you communicate your error. However you respond, the important thing is to own your mistake and inform your client. You’ll almost certainly feel uncomfortable pointing out how you failed, but you’ll feel even worse if you try to hide your failures and face suspension or disbarment once the truth comes out.