Monday, August 15, 2016

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"Lawyer must reveal co-counsel’s error to client if it could raise malpractice claim" --
  • "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?  A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client."
  • "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 — 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.  The outcome of the case was still pending.  The lawyer was concerned that disclosing the information to the client could undermine the lawyer’s relationship with co-counsel, but was nonetheless convinced that it was in the client’s best interest to reveal the facts as soon as possible."
  • "Respect for client autonomy and decision-making means that the lawyer must provide information about all significant developments affecting the representation.  That 'applies equally to a significant error or omission by co-counsel that may give rise to a malpractice claim,' said the Committee."
"When The Cover-Up Outweighs The Crime: Professional Discipline For Hiding Attorney Errors" --
  • "Lawyers owe an ethical and fiduciary duty to their clients to report their own “mistakes” in the course of representation.  The source of the duty can be found, for example, in ABA Model Rule 1.4 (USPTO Rule 37 CFR Section 11.104), which in relevant part requires an attorney to 'promptly inform the client of any decision or circumstance” adversely affecting the representation, as well as to “keep the client reasonably informed about the status of the matter.'"
  • "Courts have found in the IP malpractice context that a lawyer may “have an obligation to advise his client about a possible malpractice claim” against the lawyer.  See Encyclopedia Britannica, Inc. v. Dickstein Shapiro LLP, No. 10-0454 (D.D.C. Feb. 2, 2012).  Such decisions are consistent with the lawyer’s ethical duty to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  ABA Model Rule 1.4(b); 37 CFR Section 11.104(b)."
  • "Professional liability insurer CNA recently explained that “the attorney’s management of the mistake is often more important than the mistake itself.  Moreover, failure to appropriately address an error can exacerbate the simple malpractice situation and give rise to disciplinary grievances or other claims and increased damages.  See 'To Err is Human: A Guide for Attorneys on How to Manage Errors'"

In Virginia: "Bar proposes duty to address impaired lawyers" –
  • "A Virginia State Bar committee is seeking comment on the duty of law firm leaders to take action when another firm lawyer shows signs of impairment. The VSB Standing Committee on Legal Ethics is proposing a legal ethics opinion calling for law firms to have enforceable policies requiring intervention for impaired lawyers."
  • "The proposed opinion specifically focuses on the obligations of partners and supervisory lawyers to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public."
  • See also: ABA Formal Ethics Opinion 03-429

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