Missing a deadline for filing a pleading or discovery response, or omitting an important argument from a brief, can have grave consequences for the client. While some mistakes are more serious than others, the lawyer must still adhere to the California Rules of Professional Conduct (CRPC).
A lawyer must address a mistake promptly. Under CRPC 1.3, a lawyer shall not “intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence,” meaning that the lawyer must act with “commitment and dedication to the interests of the client” and “not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.” Just as a mistake may reflect a lack of diligence (or competence, see CRPC 1.1), undue delay in minimizing harm to the client may reflect a lack of diligence, too.
If the mistake is significant, it must be disclosed to the client. CRPC 1.4. For example, CRPC 1.4(a)(3) requires the lawyer to “keep the client reasonably informed about significant developments relating to the representation.” Whether the mistake is a significant development generally depends on the facts and circumstances. CRPC 1.4, Comment . Guidance may be found in American Bar Association (ABA) Formal Opinion 481, which concluded under similar ABA Model Rule 1.4(a)(3) that a lawyer must inform a current client if the lawyer made a “material error” in the representation. An error is material if a disinterested lawyer would conclude it is reasonably likely to harm or prejudice a client or the error would reasonably cause a client to consider terminating the representation. ABA Formal Opn. 481, at 4.
If the mistake must be disclosed, disclosure must be prompt. When reasonable to do so, the lawyer may try to cure the mistake or consult with ethics counsel before disclosure. ABA Formal Opn. 481, at 5.
When disclosure is required, a lawyer should explain the mistake to the client “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” CRPC 1.4(b). The explanation should include the nature of the mistake and its potential consequences. COPRAC Formal Opn. 2019-197, at 8.
The lawyer must also consider whether the mistake has created a conflict of interest between the lawyer and the client, in that “there is a significant risk the lawyer’s representation of the client will be materially limited . . . by the lawyer’s own interests.” CRPC 1.7(b). If so, the lawyer must adequately apprise the client of the conflict so the client can make an informed decision whether to consent to it, and the lawyer must decide whether the representation can continue even with a waiver. CRPC 1.7(b), (d); see CRPC 1.6. The lawyer should not advise the client as to whether the mistake constituted malpractice. Instead, where appropriate, the lawyer should encourage the client to consult independent counsel. COPRAC Formal Opn. 2019-197, at 3-4, 8-9.
“To err is human,” Alexander Pope said. But to hide or exacerbate it may violate the CRPC.
About the Author:
Carl W. Chamberlin is an attorney, an adjunct professor, and the Vice-Chair of the BASF Legal Ethics Committee. The views expressed in this article are his own.