ABA Malpractice Disclosure Opinion Challenged On Merits

Dane S, Ciolino at Louisiana Legal Ethics blog has an interesting post on the recent ABA opinion on disclosure of past malpractice

Recognizing that “[e]ven the best lawyers may err,” the ABA Standing Committee on Ethics and Professional Responsibility has issued a formal opinion addressing when a lawyer must inform a client or former client of a material error. See ABA Formal Op. No. 481 (Apr. 17, 2018). While the committee gets it right as to present clients, even the best committees may err when it comes to a lawyer’s obligation to disclose errors to former clients…

The committee got it right in concluding that “[g]ood business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client.” See ABA Formal Op. 481 at 2. But it was wrong in advising that such notification is a “personal decision” left to the lawyer. It’s not. Rule 1.16(d) requires it, at least when notification is practicable and reasonable to prevent, mitigate or rectify substantial injury to the financial interests or property of the former client.

I think Mr. Ciolino gets it right here. (Mike Frisch)