2015 Formal Ethics Opinion 4: Disclosing Potential Malpractice to a Client

Photo Courtesy of the North Carolina State Bar

View the Proposed Ethics Opinion in Full Here.

The North Carolina State Bar voted to formalize Proposed 2015 Formal Ethics Opinion 4 at its meeting on July 17, 2015.

Formal Ethics Opinion 2015 FEO 4 rules that due to the seriousness of professional malpractice potential on a client’s case and well-being, the duty to disclose whether an error might constitute legal malpractice depends on where it falls on a spectrum of the duty to keep the client reasonable informed about his legal matter under Rule 1.4.  For instance, an error that falls between the two extremes of the spectrum must be analyzed under the duty to keep the client informed.  If the error will result in financial loss, delay, or a material disadvantage, the error must be disclosed.  This also is applicable if the error disclosure is necessary to keep the client informed.  The Ethics Committee warns that lawyers should err on the side of caution.  In such a situation where disclosure is necessary, the attorney is not required to withdraw.  The disclosure must be done in a candid manner.

Regarding what information to provide, the lawyer should disclose what happened, but not whether a claim for malpractice now exists.  The disclosure should be done in a timely manner.  If the client will lose a significant right or interest if a motion fails, for instance, the client is entitled to know.  A lawyer may refer the client to another attorney for advice.  A lawyer is not permitted to collect a clearly excessive fee, but there is always the potential that a lawyer may have to refund some of the fee.  If the attorney concludes that he must refund some of the fee paid to him by the client after a review of the entire representation he should do so.