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If You Make a Material Error, You Must Tell Current Clients

First, the bad news: you have to inform current clients when you make material errors.

The good news is, you don't have to tell former clients. That's the gist of a recent ethics opinion from the American Bar Association.

So what are we to learn from the "tell-don't-tell" rule? Get rid of those erred-upon clients so you don't have to tell them?

Ethics Opinion 481

Hold on, it's just an opinion. Seriously, it's Formal Ethics Opinion No. 481.

It expands on Professional Rule of Conduct 1.4, which talks about a lawyer's duty to communicate with clients. It already says a lawyer must "keep the client reasonably informed," and explain enough to "permit the client to make informed decisions."

The new ethics opinion takes it to the next level, requiring the lawyer to inform a client of an error that is "likely to harm or prejudice" the client and that would cause the client to "consider terminating the representation."

There is some wiggle room in the opinion. For example, it says a lawyer must inform a client promptly but leaves open the question whether that allows time to fix the problem first.

Timing Priorities

It seems obvious that if you make a material mistake, you should fix it as soon as possible. If the solution is a mouse-click away, you should probably do that before telling a client you flaked.

But time is relative, so the theoretical physicists say. For example, it's probably not a good idea to delay confession until after you file a motion to set aside an adverse judgment you caused.

Also, it's not really a good idea to wait until after your representation is over to avoid the duty to tell clients of material errors. That's how you end up with no clients.

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