Category Archives: ABA Formal Ethics Opinion 481- advising clients of material errors

ABA Formal Opinion 481 states that lawyers have an obligation to inform current clients of material errors

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 481, which addresses a lawyer’s obligation to promptly inform a current client if the lawyer believes that he or she has made a material error.  ABA Formal 481 Opinion is here: http://www.abajournal.com/files/Formal_Opinion_481_FINAL_formatted_04_16_2018(2).pdf

The formal opinion states ABA Model Rules of Professional Conduct Rule 1.4 governs a lawyer’s duty of communication and requires lawyers to promptly inform clients of any decision or circumstance for which a client’s informed consent is needed and also requires a lawyer to “reasonably consult” with the client about the means of achieving the client’s goals during representation and keep the client “reasonably informed” about the progress of the case.

The formal opinion further states that an error is material if “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” and if there has been such a material error, the attorney must inform the client promptly. Whether an attorney can correct the error before telling the client depends on the individual facts.

According to the opinion, there is no duty to inform former clients since “(n)owhere does Model Rule 1.4 impose on lawyers a duty to communicate with former clients (and)  (h)ad the drafters of the Model Rule intended Rule 1.4 to apply to former clients, they presumably would have referred to former clients in the language of the rule or in the comments to the rule.”

The formal opinion concludes:

“The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if 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. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case and fact specific inquiry.

No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation.”

Bottom line:  This ABA opinion may be the first to address a lawyer’s affirmative obligation to tell a current client when he or she has made a material error, which the opinion states is one which 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.”

Be careful out there.

Disclaimer:  this Ethics Alert blog is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

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Joseph Corsmeier

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