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Lawyers Must Report Each Other's Malpractice, State Bar Says

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By Casey C. Sullivan, Esq. on July 08, 2016 1:57 PM

Things just got a bit snitchier in the Empire State. In a recent ethics opinion, the New York State Bar Association has said that lawyers must report co-counsel's mistakes to their client, should the other attorney's error or omission rise to the level of potential malpractice.

Here's how the reasoning goes.

Duty to Communicate

The NYSBA's ethics opinion shouldn't be too surprising, given attorney's own personal duty to communicate to clients "a significant error or omission by the lawyer in his or her rendition of legal services."

That responsibility to report personal errors, the bar writes, grows out of two principals in the Code of Professional Responsibility. First, a lawyer must provide enough information for the client to make informed decisions, and the lawyer must withdraw from representation when his or her personal interests conflict with a client's. Both rules are based on what the NYSBA calls "the touchstone for the lawyer's obligation: client autonomy in decision-making" and the lawyer's responsibility to avoid conflicts of interest.

Take those principles one step further and it's easy to conclude that lawyer's must reveal not only their own significant errors and omissions, but that of co-counsel, in order to let client's make informed decisions. That knowledge will allow a client to decide whether to continue the attorney-client relationship, terminate co-counsel, or bring a malpractice action immediately, the state bar reasoned.

Co-counsel, Conflicts of Interest, and a Touch of Caution

What does that have to do with conflicts of interest, you wonder? Often, the prospect of reporting co-counsel leaves lawyers worrying about damaging their relationships with their fellow lawyers. That desire to maintain good relationships, even if potentially harmful to the client, is enough to invoke conflict of interest rules.

But, attorneys shouldn't start reporting every problem they have with co-counsel. Noting that the bar "has traditionally been leery of situations where the client seeks to replace one lawyer with another" and that ethics require lawyers not to "wrongfully or improperly disparage the other lawyer in an endeavor to supplant him," the NYSBA issues this word of caution:

[T]he inquirer should not report misgivings about co-counsel to the client unless the inquirer reasonably believes co-counsel has committed a significant error or omission that may give rise to a malpractice claim.

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