Texas Ethics Opinion 557: Clients Considering Malpractice Claims Against You
ConflictsThe Professional Ethics Opinions Committee for the State Bar of Texas recently adopted an opinion addressing the ethical obligations and options for a lawyer whose client is actively considering a legal malpractice claim. The opinion is available in the September issue of the Texas Bar Journal at page 750.
The basic ethical conclusion of the committee is sound. When a client is actively considering a legal malpractice case against the lawyer, a conflict analysis is required. The lawyer must assess whether the representation has become adversely limited by the lawyer’s own interest. If so, the lawyer cannot continue the representation unless he or she reasonably believes that representation will not be materially affected. If the lawyer reasonably believes that the representation will not be materially affected, the lawyer can continue with the representation with disclosure to the client and consent from the client. The lawyer must, however, constantly reassess whether additional circumstances make his belief that the representation is not materially affected invalid. The lawyer is required to seek withdrawal if the representation is or becomes materially affected by the conflict or the client does not consent after full disclosure of the situation. Permissive withdrawal is an option, with any required court approval, even if the lawyer is permitted to continue the representation.
We have a few practical pointers as to how these considerations may play out in a malpractice case.
1. Judging whether the representation has become adversely limited and whether the lawyer reasonably believes that the representation was materially affected will occur in hindsight. A lay jury will probably make those determinations.
2. If the lawyer continues the representation after learning that the client is considering a malpractice claim and the matter does not turn out well for the client, every action in the subsequent representation will be second guessed. Lawyers’ actions after realization that the client may pursue a malpractice claim are often painted as part of an attempt to cover up the problem. The client may claim that the lawyer stayed in the case to get as much as they could in fees even though it was clear they had committed malpractice. They may also claim that settlements and tactics were recommended or not recommended because of the possible effects on the malpractice claim. What may have been a simple mistake can be compounded by a conflict.
3. Whether or not your client is actively considering a malpractice claim, whenever clients begin to show that they do not trust your advice you should consider withdrawal. Clients who do not trust your advice are more likely to sue-don’t give them more advice to question.
4. Client consent should be in writing even if not required by the disciplinary rules, but even a well-drafted disclosure and consent may not prevent a malpractice claim. A consent is only effective if the lawyer was reasonable in entering into the representation. Written disclosures that are long and involved may not be understood by the client or a jury in the malpractice case; disclosures that are too short may fail to adequately warn of the potential problems.
