Law Firm Malpractice Disclosure: Illustrations and Guidelines

Lawyers err every day, in hard and easy cases, in trials and transactions, and in large and small firms. By turns commonplace and noteworthy, the errors fall in both the private shadow and the public light of for-profit, nonprofit, and government practice. The literature of lawyer and, by extension, law firm error spans common law doctrines, state ethics rules and opinions, federal rules, practitioner treatises, restatements, and academic casebooks and commentaries. Despite the breadth of this literature, the intertwined problems of lawyer or law firm error and client malpractice disclosure remain unresolved and surprisingly underappreciated. Against the backdrop of widening debates over the ethical culture and infrastructure of law firms, this Article recasts the originating problem of lawyer and law firm error narrowly in terms of client malpractice disclosure. Framing the problem of professional error in the limited terms of client disclosure focuses the inquiry more closely on lawyer and law firm acts of delay in communicating information to clients and acts of declination in withholding information from clients. Thus tailored, two questions stand out. First, when may a lawyer or law firm permissibly delay disclosure of information to a client about an error-related incident of malpractice? And second, when may a lawyer or law firm permissibly withhold information from a client about such an incident and its consequences? Like the instant symposium, both questions implicate considerations of law firm culture and infrastructure, ethical regulation, professional liability, and risk management policy and procedure. To address these fundamental yet often overlooked questions, the Article proceeds in three parts. Part I situates the problems of law firm error and client malpractice disclosure in the broader framework of lawyer regulation and law firm ethical culture. Part II summarizes the general law and rule framework governing law firm malpractice disclosure and illustrates the interplay of common law and rule-based claims and defenses in malpractice disputes. Part III examines the content of contemporary best practice guidelines for malpractice disclosure in the field of lawyer and law firm regulation. Taken together, the three parts construct a conventional, generalizable account of law firm malpractice disclosure disputes familiar to practitioners, regulators, and academics alike. Chronicled through a series of interwoven case illustrations, the account depicts the standard progression of malpractice disclosure disputes from the formation of the client-lawyer relationship (Illustration A), to the lawyer’s commission and the law firm’s discovery of a harmful performance error (Illustration B), to the law firm’s delay and omission in communicating information of the error to the client (Illustration C), to the undisclosed sharing of client information with the law firm’s in-house general counsel, malpractice insurance carrier, and outside professional liability counsel (Illustration D), and finally to the law firm’s internal investigation of client-lawyer conflicts of interest and the ultimate decision to withdraw from the representation (Illustration E).