What should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error? A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client.
Ethics Opinion 1092 was based on an inquiry received from a lawyer with a dilemma. The lawyer had been brought into a case as co-counsel on the eve of trial, and found that the other lawyer had done virtually no discovery, and had not made any document requests — despite the fact that communications and e-mails between the parties would be critical to the case.
The lawyer believed that the lack of discovery was a significant error, and that it could constitute malpractice. The outcome of the case was still pending. The lawyer was concerned that disclosing the information to the client could undermine the lawyer’s relationship with co-counsel, but was nonetheless convinced that it was in the client’s best interest to reveal the facts as soon as possible.
Interpreting communication, conflict rules
The NYSBA Committee on Professional Ethics noted that prior opinions had consistently held that a lawyer must come clean to the client about his or her own significant errors or omissions in providing legal services. That principle is founded on two ethical duties: (1) the duty to communicate with the client, and provide the information necessary for the client to make informed decisions (see Model Rule 1.4); and (2) the duty to withdraw from the representation where the lawyer’s personal interests conflict with the client’s (see Model Rule 1.7(a)(2)).
Those same rules also raise a duty to communicate with the client about co-counsel’s potential malpractice, the Committee opined.
Respect for client autonomy and decision-making means that the lawyer must provide information about all significant developments affecting the representation. That “applies equally to a significant error or omission by co-counsel that may give rise to a malpractice claim,” said the Committee.
If co-counsel committed such an error, the client would have several options, such as continuing the relationship with co-counsel and reserving a possible malpractice claim; terminating co-counsel; bringing a malpractice action against co-counsel now; or getting independent advice about the options. But without information, the client would be stymied in pursuing any of these choices.
Also, depending on the facts, the lawyer with the inquiry might have a personal conflict of interest that would raise a significant risk of adverse effect on the lawyer’s professional judgment — for instance, if the lawyer’s desire to maintain a good relationship with co-counsel was motivated by personal concerns, like preserving a good referral source (as opposed to being based on the goal of avoiding harm to the client’s case). A personal interest plus risk of adverse effect on professional judgment could raise a duty to withdraw.
Further thoughts …
Instead of the facts posed by the inquiry to the Committee, what if the case is already over, and then you become aware of some error by co-counsel — but the trial outcome was favorable, notwithstanding the mistake? The Committee didn’t consider that possible scenario, but it raises some further questions. For instance, even if the result was an award to the client, is it possible that the award would have been larger absent the error? How far do you have to go to decide such a question?
Even with these open questions, one thing is clear from this recent ethics opinion: at least sometimes, co-counseling a case can result in a duty to have a difficult conversation with your client, and you should keep alert and know your ethics rules if that day should come.