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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2626" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/06/Lets-talk-2-300x280.jpg" alt="Let's talk" width="300" height="280">What should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error?&nbsp;&nbsp;A <a href="https://nysba.org/ethics-opinion-1092/#" target="_blank" rel="noopener noreferrer">new ethics opinion</a> from the New York State Bar Association says that&nbsp;if&nbsp;you reasonably believe that&nbsp;your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose&nbsp;the information to the client.
Discovery slip-up
Ethics Opinion 1092 was based on an inquiry received from a lawyer with a dilemma.&nbsp; The lawyer had been brought into a case as co-counsel on the eve of trial, and found that the other lawyer had done virtually no discovery, and had not made any document requests &mdash; despite the fact that communications and e-mails between the parties would be critical to the case.
The lawyer believed that the lack of discovery was a significant error, and that it could constitute malpractice.&nbsp; The outcome of the case was still pending.&nbsp; The lawyer was concerned that disclosing the information to the client could undermine the lawyer&rsquo;s relationship with co-counsel, but was nonetheless convinced that it was in the client&rsquo;s best interest to reveal the facts as soon as possible.
Interpreting communication, conflict&nbsp;rules
The NYSBA Committee on Professional Ethics noted that prior opinions had consistently held that a lawyer must come clean to the client about&nbsp;his or her own significant errors or omissions in providing legal services.&nbsp; That principle is&nbsp;founded on two ethical duties:&nbsp; (1) the duty to communicate with the client, and provide the information necessary for the client to make informed decisions (see <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html">Model Rule 1.4</a>); and (2) the duty to withdraw from the representation where the lawyer&rsquo;s personal interests conflict with the client&rsquo;s (see <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients.html">Model Rule 1.7(a)(2)</a>).
Those same rules also&nbsp;raise a duty to communicate with the client about co-counsel&rsquo;s potential malpractice, the Committee opined.
Respect for client autonomy and decision-making&nbsp;means that the lawyer must provide information about all significant developments affecting the representation.&nbsp; That &ldquo;applies equally to a significant error or omission by co-counsel that may give rise to a malpractice claim,&rdquo; said the Committee.
If co-counsel committed such an error, the client would have several options, such as continuing the relationship with co-counsel and reserving a possible malpractice claim; terminating co-counsel; bringing a malpractice action against co-counsel now; or getting independent advice about the options.&nbsp; But without information, the client would be stymied in pursuing any of these choices.
Also, depending on the facts, the lawyer with the inquiry might have a personal conflict of interest that would raise a significant risk of adverse effect on the lawyer&rsquo;s professional judgment &mdash; for instance, if the lawyer&rsquo;s desire to maintain a good relationship with co-counsel was motivated by personal concerns, like preserving a good referral source&nbsp;(as opposed to being based on the goal of avoiding harm to the client&rsquo;s case).&nbsp; A personal interest plus risk of adverse effect on professional judgment could raise a duty to withdraw.
Further thoughts ...
Instead of the facts posed by the inquiry to the Committee, what if the case is already over, and then&nbsp;you become aware of some error by co-counsel &mdash; but the trial&nbsp;outcome was favorable, notwithstanding the mistake?&nbsp;&nbsp;The Committee didn&rsquo;t consider that possible scenario, but it raises some further questions.&nbsp; For instance, even if the result was an award to&nbsp;the client, is it possible that the award would have been larger absent the error?&nbsp; How far do you have to go to decide such a question?
Even with these open questions, one thing is clear from this recent ethics opinion:&nbsp; at least sometimes, co-counseling a case can result in a duty to have a difficult conversation with your client, and you should keep alert and know your ethics rules if that day should come.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Lawyer must reveal co-counsel’s error to client if it could raise malpractice claim