Self-Reporting Malpractice: Best Practices
We have clients who come to us with cases against their former lawyers. Some clients tell us, “My attorney admitted fault and told me to call you.”
In such cases, the attorney at fault is often cooperative, and the case proceeds as smoothly as possible. An attorney admitting their own malpractice may seem shocking, but it shouldn’t be.
It is representative of ethical and best practices of attorneys.
The ABA Standing Committee on Ethics and Professional Responsibility issued a Formal Opinion some time ago on Rule 1.4, recently referenced in the New Jersey Law Journal, reminding that it requires that lawyers “self report” errors in the representation to a client.
American Bar Association (ABA) Rules 1.4 and 1.7
Rules 1.4 and 1.7, and interpretation of them, have held that attorneys have an obligation to notify clients when the client may have a legal malpractice claim, even if notification is adverse to the attorney’s own interest.
The rule stems from a combined analysis of Rules 1.4 and 1.7 of the Rules of Professional Conduct. Rule 1.4 requires a lawyer to keep a client “reasonably informed”. Rule 1.7 requires lawyers to disclose errors if there are conflicts of interest.
Common Legal Malpractice Examples
Some of the most common forms of legal malpractice include failure to know the law, failure to understand the law and the specific case, failure to communicate properly with the client and abide by his/her wishes, and failure to assess and abide by applicable statutes of limitation and filing deadlines.
For a deeper dive into the subject matter on revealing your own malpractice to clients, how the rules surrounding this obligation have been interpreted by case law and when this obligation arises, a fairly comprehensive article was published by Benjamin Cooper in 2010 in the Baylor Law Review, “The Lawyer’s Duty to Inform His Client of His Own Malpractice.”
How to Properly Self-Report Legal Malpractice
When self-reporting, it is good practice to do so in a writing that is dated and signed, that defines the known malpractice, and that informs the client that you recommend that they consult with a lawyer well-versed in legal malpractice. You can list two or three counsel in the writing for the client to go to for consultation. We have certainly had lawyers call us, indicating the malpractice and that they told their client to call us.
The hope for all of us is that our practice goes smoothly and there are no incidences of malpractice. But if they occur, there are best practices to follow that do not compound or magnify the situation.
Consequences of Not Self-Reporting Legal Malpractice
The interesting thing about statute of limitations is that if you do NOT self-report legal malpractice in a timely fashion, and it is alleged and proven that this was done in an effort to fraudulently conceal it, Connecticut law is that pursuant to Connecticut General Statute Section 52-595, the statute of limitations on the malpractice is tolled until the client discovers the existence of the malpractice.
This, as well as insurance considerations, are good incentive to comply with the Rules of Professional Conduct and self-report malpractice to a client.
Contact an Experienced Connecticut Legal Malpractice Lawyer
Did you suffer damages as a result of a negligent attorney? Learn how we can assist you by calling (860) 561-0651 or sending an online message today.
