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Published Monday, November 14, 2016
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To Err is Human: How Attorneys Can Manage Mistakes

A day in the life of an attorney is not easy. You face rigid deadlines and an endless stream of client demands. Making a mistake could lead to a malpractice suit or even disbarment. There is very little room for error.

But mistakes can and do happen, despite the most thorough staff training and precautions. Consider the following scenario.

In a legal malpractice lawsuit, J-M Manufacturing Company, Inc. asserted its former counsel disclosed 3,900 privileged documents to the federal government in response to an e-discovery subpoena because the firm did not thoroughly review the work of an e-discovery vendor or the work of contract attorneys.1

The first mistake was neglecting to check the work of the e-discovery vendor. The second mistake was neglecting to check the work of the contract attorneys. Both mistakes were avoidable.

The duty of an attorney to disclose a material error is as old as the profession itself, and is founded upon the attorney's role as a fiduciary. One court has characterized the common law duty to disclose possible malpractice as a "corollary of the fiduciary obligations of undivided loyalty and confidentiality" the attorney owes his or her client.2 Comment 7 to ABA Rule 1.4 states, "[a] lawyer may not withhold information to serve the lawyer's own interest or convenience."

As presented in the CNA PROfessional Counsel article by Sean Ginty, Risk Control Consulting Director, CNA Lawyers Professional Liability Program, and Matthew Fitterer, Risk Control Representative, CNA Lawyers Professional Liability Program, a lawyer should consider implementation of the following strategies when a mistake occurs:
   

  1. Evaluate the error.
    All errors are not equal. One ethics opinion described a "spectrum of errors" with the reporting standard determined by whether a disinterested lawyer would conclude that the error would likely result in prejudice to a client's rights or claims.3 Minor errors that do not require disclosure include most typographical or strategic errors. Substantial errors, such as failure to file a lawsuit within the statutory limitations period, must be disclosed. In some instances, an error may fall in the middle of the spectrum and cannot be clearly labeled minor or substantial.  Where the obligation to disclose to the client may not be clear, consultation with outside counsel could help in deciding whether or not to disclose the error.
      
  2. Notify the client if it is a substantive error, even if the relationship has concluded.
    Notify your client promptly of the error, including both factual circumstances and the consequences. The content of the disclosure will vary by jurisdiction. If the error is discovered after the attorney-client relationship has ended, the obligation to inform is taken to prevent future harm to the client's interests, or to alert the client to a viable malpractice claim. Moreover, failure to disclose a mistake to the client may constitute fraudulent concealment.
      
  3. Make the disclosure without admitting liability.
    Acknowledging an error does not mean that causation and damages elements of a legal malpractice claim have been established. Any statement admitting malpractice presents the risk of waiving insurance coverage and burdening the attorney with undue liability where extenuating circumstances exist.
      
  4. Deliver the news in a professional manner.
    Optimally, the attorney should disclose the error in a face-to-face meeting. Conveying a sense of accountability and candor may also help in minimizing the likelihood of a claim and salvaging a client relationship. Following the meeting, the attorney should memorialize the disclosure in the form of a letter or email. Written documentation will benefit both the attorney and the client.
      
  5. Notify your insurance carrier.
    An attorney who fails to properly notify one's insurer of a claim or potential claim risks waiving coverage and faces the formidable prospect of financing litigation and any ensuing damages. The terms and conditions of a policy will, of course, vary from insurer to insurer, but many professional liability policies share the same basic requirements.
      
  6. Undertake a serious conflict of interest review.
    A lawyer that hides a mistake by settling the underlying case and not informing the client creates a serious conflict of interest issue by subordinating the interests of the client to his or her personal interests.
      
  7. Inform your firm.
    Partnership agreements and other terms of employment may require attorneys to promptly notify their firms of any mistake or error that may lead to a malpractice claim. Even in the absence of such a requirement, consulting with another attorney in the law firm is an effective means of helping to avoid ethical missteps. Many firms designate in-house ethics counsel to provide this guidance.
      

An attorney who has committed malpractice has only one path forward: face the client, disclose the mistake, learn from the experience and move on. At a minimum, by taking direct action, an attorney can limit the potential negative impact of an error. One missed deadline or drafting error can ruin a client relationship, but failing to respond ethically can ruin a career. Being ready to manage your mistakes – before they happen – is the best way to preserve both your career and your reputation.
  
1 McDermott Will & Emery Wins E-discovery Blunder of the Week (July 1, 2011).  Accessed August 11, 2016.
2 Leonard v. Dorsey & Whitney LLP, 553 F.3d 609, 629 (8th Cir. 2009)
3 Colorado Formal Ethics Op. 113 (Nov. 19, 2005)

One or more of the CNA companies provide the products and/or services described. The information is intended to present a general overview for illustrative purposes only. Read CNA’s General Disclaimer.
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One or more of the CNA companies provide the products and/or services described. The information is intended to present a general overview for illustrative purposes only. Read CNA’s General Disclaimer.
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