Ethical Duty to Report Your Own Malpractice – A Proposed Opinion
The Minnesota Lawyers Professional Responsibility Board has proposed the adoption of Opinion No. 21 [opens as PDF], which deals with a lawyer’s duty to report his or her own malpractice to the lawyer’s client. The proposed opinion states:
A lawyer who knows that the lawyer’s conduct could reasonably be expected to be the basis for a malpractice claim by a current client should consult with the client about the lawyer’s conduct and the potential claim. In consulting with the client, the lawyer should disclose any significant risk that continued representation of the client will be materially limited by the personal interest of the lawyer and should advise the client to seek independent legal advice about the potential claim and the lawyer’s continued representation. When there is a conflict of interest, the lawyer should obtain the client’s informed consent, confirmed in writing, regarding the lawyer’s continued representation, if the continued representation is not otherwise prohibited.
Comments to the proposed opinion are included in the proposed opinion. The LPRB is accepting public comment until August 31, with comments to be made in writing to:
Siama Y. Chaudhary
1500 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102
There does not appear to be a way to e-mail or post comments, though we have added this as a topic for discussion on mypractice, the MSBA’s professional networking site.
This is not a new issue, as Bassford Remele’s Chuck Lundberg, a former chair of the LPRB, had written a Bench & Bar article in September 2003 about the ethical duty to report one’s own malpractice to the client.
ejoranson
Mr. Gillers, the proposed rule does not “obligate” an attorney to self-report. Are you proposing self-reporting to be an “obligation” (must/shall) or just to be advisable (should)?
Regardless, I find this rule's limited application to current clients, not former clients, odd.
Stephen Gillers
I wholeheartedly spport this opinion. A contrary view is in my view indefensible and, indeed, embarrassing to the profession. Possible malpractice is something about which the client has a strong interest in knowing, whether or not the possible malpractice crates a conflict of interest in continued representation. The client may choose to change lawyers and nothing more. That's its right, of course. The client may want to explore an action for damages. The client may have a claim for fee disgorgement. Unless the lawyer is obligated to reveal the possibility of malpractice, the client will often be wholly unaware of it or of the possible damage it may have caused. This ignorance is particulary a risk for clients who are less sophisticated in the use of lawyers. I don't see how the profession could say that a lawyer who conceals his or her possible malpractice is an “ethical” lawyer.