Full Disclosure of Mistake, Consequences May Let Attorney Avoid ‘Prior Work’ Conflict

By Samson Habte  

July 8 --A lawyer who botched a client's immigration matter may stay on as counsel because he took key ameliorative steps to minimize the potential emergence of a “prior work” conflict of interest that otherwise would require his withdrawal, the Connecticut bar's ethics committee concluded June 18.

A “prior work” conflict arises when a lawyer makes an error and “there is a significant risk” that his continued representation of the affected client “will be materially limited” by the lawyer's “personal interests, in this case [his] desire to mitigate [his] malpractice exposure,” the committee explained.

The present inquiry addressed a lawyer who made a mistake that caused his client's green card application to be delayed for at least two years. The committee said the lawyer took several important steps that diminished the possibility of a “prior work” conflict, including:

• promptly discussing the lawyer's error and its potential consequences with the client, and advising her to “speak to other attorneys to confirm [that] explanation”;

• providing the explanation in a letter, and getting written consent to his continued representation; and

• meeting with a government lawyer and asking that any error not be attributed to the client.

A Blueprint for Overcoming Potential 'Prior Work' Conflicts: Guidance From Other Authorities

The analysis that the Connecticut ethics panel conducted in finding that the erring lawyer's withdrawal was not required comports with what other authorities have said about how to navigate “prior work” conflicts.

Promptly Admit Error. Courts and commentators have stressed that promptly disclosing a mistake is an essential prerequisite to heading off a potential “prior work” conflict. The indicate that such disclosure is mandated by Rule 1.4, which requires lawyers to keep clients “reasonably informed about the status” of their matter.

“Where the mistake is likely to give rise to a malpractice claim against the attorney, it is clear that the attorney must inform the client of the mistake as part of her duty to keep the client 'reasonably informed,'” one author has said. John P. Brumbaugh, The Ethics of “Oops”: Communicating About Mistakes With Clients and Others, ABA Litigation Section Annual Conference 2014 (citing New York State Ethics Op. 734, 17 Law. Man. Prof. Conduct 42 (2000); Minnesota Ethics Op. 21, 25 Law. Man. Prof. Conduct 646 (2009)).

Disclosure Should 'Hurt.' The same author advises that “In the case of an underlying work conflict, the lawyer must, at a minimum, recite the relevant facts, which will usually require description of the attorney's mistake in agonizing detail. (As one attorney ethics expert once described it, writing the letter should 'hurt.')” Brumbaugh, supra.

And like the Connecticut ethics committee, the author stresses the importance of advising the client to consult with another attorney before agreeing to waive a potential “prior work” conflict. “The fact that the client had independent counsel advising it concerning whether to continue to employ the attorney is powerful evidence in favor of the effectiveness of the client's consent,” Brumbaugh wrote.

Analyze Potential Adversity Fairly. Other authorities also emphasize the importance of objectively analyzing whether a potential “prior work” conflict is amenable to waiver through informed consent.

“Generally, the [lawyer's] interest in defending the quality of the work product or performance is congruent with that of the client on whose behalf it was rendered,” according to Iowa Ethics Op. 09-03, 25 Law. Man. Prof. Conduct 494 (2009).

“But congruency or mutuality of interest does not in and of itself prove lack of a material limitation under [Rule 1.7(a)(2)],” the Iowa panel added. “What is at issue is the 'lawyer's independent professional judgment in considering alternatives.' The risk is that a lawyer or law firm whose work product is attacked may easily become subjective and self-defensive at the expense of providing objective and independent judgment to the client.”

No Conflict, for Now

“On the facts presented, we see no indication that your continued representation of the client presents such a risk or would affect your ability to properly represent your client,” the panel said in finding no disqualifying conflict under Connecticut Rule of Professional Conduct 1.7(a)(2).

“Any steps you take to advance your client's [green card] petition will have the secondary effect of mitigating your firm's malpractice exposure,” it said. “Further, your conduct does not reflect any action that could be construed as an attempt to mitigate your malpractice exposure at the expense of your client's interests.”

Accordingly, the committee said, there was “no indication” the mistake “will interfere with [the lawyer's] professional judgment or that [he] will fail to pursue appropriate courses of action on [his] client's behalf.”

But the committee said future events may require the lawyer to reconsider whether his potential conflict has developed into an actual one.

“[If], upon reflection, you assess that there is a significant risk that you would take actions to cause your client's [green card] petition to be denied for reasons other than your mistake, thereby limiting your firm's malpractice exposure, there would be a clear conflict of interest under Rule 1.7(a)(2), requiring your withdrawal from representing the client,” the committee said.

Reimbursing Client

The committee also determined that Rule 1.8(e), which prohibits financial assistance to clients, does not forbid the inquiring attorney to reimburse $2,500 in filing fees the client had paid to the government over the past five years.

“On these facts,” it said, “reimbursing the filing fees is not 'financial assistance' within the meaning of Rule 1.8(e) because here the reimbursement is restitution and so falls outside the prohibition of Rule 1.8.”

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

Full text at http://www.ctbar.org/userfiles/Committees/ProfessionalEthics/Opinions/Informal_Opinion_2014_05.pdf.

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