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Lawyers Duty To Inform Client Material Error

Material error, lawyer shaking hands with a client

What should a lawyer do if he or she makes a harmful mistake during the course of representing a client? In Formal Opinion 481 (issued April 17, 2018), the American Bar Association (ABA) opined that Model Rule of Professional Conduct 1.4 requires a lawyer to inform a current client if the lawyer believes a “material error” was made during the course of the client’s representation. While not identical, the relevant provisions of Ohio Prof. Cond. Rule 1.4 are substantially the same. See, Prof. Cond. R. 1.4(a) and (b).

Understanding that the degree of an error is relative, a material error is defined:

A disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.

See, ABA Opinion 481(April 17, 2018).

Significantly, a different standard applies to a former client where the lawyer discovers after the attorney-client relationship has terminated that the lawyer made a material mistake:

If a material error relates to a former client’s representation and the lawyer does not discover the error until after the representation has been terminated, the lawyer has no obligation under the Model Rules to inform the former client of the error…Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client.

Id.

Given the foregoing, when an Ohio lawyer’s representation harms a client, he or she should seek ethics and/or risk management advice to determine whether such an error requires Rule-1.4 reporting to the present or former client.