Lawyers, like all professionals, make mistakes. They blow the statute of limitations, fail to conduct appropriate factual investigations, draft inadequate documents, fail to check for and disclose conflicts, and commit many other kinds of errors. Sometimes lawyers recognize their mistakes but fail to disclose them to their clients. If a lawyer’s mistake (missing the statute of limitations) causes damage to his client (inability to recover on a meritorious claim), the client can sue the lawyer for legal malpractice. What, if any, consequences are there for a lawyer who fails to disclose his error to his client?
In a previous article, I examined a lawyer’s ethical duty to report his own malpractice to his client—a topic that had previously received little attention from courts and commentators—and concluded that the duty is well-grounded in two rules. The first is the lawyer’s duty under Rule 1.4 of the Model Rules of Professional Conduct (“Model Rules”) to communicate with the client. The second is the lawyer’s duty to avoid conflicts of interest under Rule 1.7 of the Model Rules.