Bell: 3 things to know about making ‘bad mistakes’

3-things-bell-2017.jpgQueen’s frontman Freddie Mercury once admitted some of the errors he had made in his life when he sang the following in “We Are the Champions”:

“And bad mistakes/I’ve made a few.”

To those aggrieved by Mercury’s mistakes, this admission may have seemed somewhat hollow. I mean, Mercury only admitted to the “bad mistakes” and not the simple ones. Also, it’s hard to say that Mercury accepted full responsibility worthy of forgiveness when he immediately changed the subject in the next line to sand kicking and (of course) how great he was:

“I’ve had my share of sand kicked in my face/but I’ve come through.”

Now, I have known some lawyers who have never made a mistake before, and if you give them a chance, they’ll tell you how infallible they are. But what about the rest of us who sometimes don’t live up to our own expectations? Are we to take direction from Queen, only admit to the “bad” mistakes, or do we have some other duties under the Rules of Professional Conduct? Here are three things you need to know about making a mistake.

1. A lawyer must inform a current client if he or she makes a material error/a “bad mistake.”

Under Rule 1.4 of the Indiana Rules of Professional Conduct, lawyers have a duty to communicate with their clients. Specifically, lawyers have a duty to keep the client “reasonably informed about the status of the matter” and “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Ind. Professional Conduct Rule 1.4(a)(3),(b). Furthermore, “[a] lawyer may not withhold information to serve the lawyer’s own interest or convenience.” Id. at cmt. 7.

Therefore, it should not be surprising that the American Bar Association recently stated in an ethics opinion that “[i]f a lawyer errs and the error is material, the lawyer must inform a current client of the error.” ABA Comm. on Prof’l Ethics & Prof’l Responsibility, Formal Op. 481 (2018) at 1. But what is a “material error,” or what Freddie Mercury referred to as a “bad mistake?”

According to the ABA, “[a]n error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.” Id. at 2. Examples of a material errors include “financial loss to the client” or a “substantial delay in achieving the client’s objectives.” Id. at 3 (quoting 2015 N.C. Eth.Op. 4, supra note 1, 2015 WL 5927498, at *2 (2015).)

Certainly, fixing the error prior to telling the client will make the message to the client easier to take. Can you fix the mistake then tell? It depends. “When it is reasonable to do so, the lawyer may attempt to correct the error before informing the client. Whether it is reasonable for the lawyer to attempt to correct the error before informing the client will depend on the facts and should take into account the time needed to correct the error.” Id. at 5.

2. Your obligations to former clients are different.

What if the “bad mistake” is discovered after the representation is terminated? Can I just sit at my desk and whistle?

According to the ABA, “[i]f a material error relates to a former client’s representation and the lawyer does not discover the error until after the representation has been terminated, the lawyer has no obligation under the Model Rules to inform the former client of the error.” Id. at 2. So, if you find yourself in that situation and you can carry a tune, you may start whistling. Rule 1.4 was written for “clients” and not “former clients.” “Had the drafters of the Model Rules intended Rule 1.4 to apply to former clients, they presumably would have referred to former clients in the language of the rule or in the comments to the rule.” Id. at 7.

3. Absent an obligation, admitting a mistake may still be the road to take.

Just because you aren’t ethically required to admit a mistake, does that mean you shouldn’t? That’s up to you, but for those young attorneys who are just starting out, I will note that a great deal of the practice of law involves relationships. Owning up to mistakes and, more importantly, making certain that no one else gets unfairly blamed when an error occurs can help maintain relationships with judges, opposing counsel, referral sources and clients.

Even the ABA Opinion noted that “[g]ood business and risk management” may be reasons to inform former clients of errors when the notification can avoid prejudice to the former client. “Indeed, many lawyers would likely choose to [admit their errors] for those or other individual reasons. Those are, however, personal decisions for lawyers rather than obligations imposed under the Model Rules.” Id. at 7. Or you can follow Mercury’s advice, call your former client, start talking about sand being kicked in your face and how you always come through. Either way, you will be in compliance with the Rules.•

James Bell[email protected] — is an attorney with Paganelli Law Group who practices in criminal defense and assists lawyers and judges with disciplinary and legal ethics issues. Opinions expressed are those of the author.

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