Disclosing a Mistake to Your Client

Even the most knowledgeable and conscientious attorneys may sometimes make a mistake in representing their clients. Many mistakes are minor and do not adversely affect the client’s case. Even when a mistake occurs, there may be ways to repair the mistake and avoid adverse consequences to your client. When a material mistake does occur, the attorney must keep the client informed of the mistake. In certain circumstances, the attorney can keep representing the client with the client’s written consent to attempt to remedy the mistake. If you have made a mistake that cannot be fixed, such as the statute of limitations has run on the client’s case without a lawsuit having been filed, you must promptly inform the client of the mistake and tell her that due to a conflict of interest, you can no longer represent her. In addition, you should tell the client to seek independent legal advice regarding her rights. You should not give the client any advice about a potential legal malpractice claim against you due to a conflict of interest between your personal interests and the client’s interests.

Not all mistakes require disclosure to the client. To determine whether a mistake creates a conflict of interest between you and your client, you should consider several factors, including whether it is a clear-cut error, whether the error can be fixed and whether there are potentially severe consequences to the client. The NC State Bar 2015 Formal Ethics Opinion 4 (2015 FEO 4) discusses the analysis of whether an error must be disclosed to the client. Click here to read 2015 FEO 4  https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2015-formal-ethics-opinion-4/

If you are unsure whether a mistake should be reported to the client, reach out to a claims’ attorney at Lawyers Mutual. Above all, be honest and forthcoming with your client. It is fine to apologize for your mistakes. Maintaining an open and honest dialogue with your client may actually prevent a legal malpractice claim from being filed.

For more information about ethical and practical considerations when communicating with a client about errors, please see our risk management guide “I Made a Mistake.  What Now?  Don’t Make it Worse!”