In this episode of Remotely Ethical, we discuss what lawyers should do if they discover they have made a mistake on a client matter.
- Determining whether the mistake needs to be reported to the client. For this, we recommend reviewing NY State Bar Ethics Op. 1092 (2016)
- Getting ethics or risk management advice from in-house or outside professional responsibility counsel
- Ensuring that communications within the law firm about the mistake are protected under the intra-firm privilege rule. For this, we recommend reviewing the leading New York case Stock v. Schnader Harrison, which Tyler has previously written about
- Determining whether to report the mistake to your malpractice carrier
- Understanding that there is a difference between making a mistake and committing malpractice and that being candid without your client about a mistake does not require you to admit legal malpractice (which could imperil your insurance coverage)
- Lawyers should also consider the potential conflict of interest that may arise when a lawyer commits a mistake in a client-matter. We do not discuss that here but will cover it in a future episode!