Self-Reporting Malpractice: Best Practices
We have clients who come to us with cases against their former lawyers. When we ask our clients who referred them, some report to us “my attorney told me that s/he screwed up and told me to call you.” In those cases, often the attorney responsible for the error is cooperative and the case proceeds as well as a lawyer can expect, in such circumstances. While this turn of events of an attorney telling a client of his/her own malpractice may be surprising, even shocking, it should not 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” to a client errors in the representation. 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 is the outcome of a combined analysis of Rules of Professional Conduct 1.4, requiring a lawyer to keep a client “reasonably informed”; and Rule 1.7, focusing on conflicts of interest, indicating that if the representation will be limited by a personal interest of the lawyer, the error must be disclosed.
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.”
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.
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. However, should that not be the case, there are best practices to follow that do not compound or magnify the situation.