Does a lawyer, including a legal aid organization, have to tell the client about a significant error that could support a malpractice claim, and might the lawyer have to withdraw?
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This page answers the general question as of 2000. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A Legal Aid Society that serves low-income clients asked whether it is bound by the rules requiring lawyers to disclose significant errors to clients, and whether it could continue representing a client who, after disclosure, still wanted the Society to stay on. The committee answered that the Society is subject to the same ethical standards as any other law office.
On the duty to disclose, the committee explained that whether a lawyer must tell a client about a mistake depends on the nature of the error, whether it can be corrected in the pending proceeding, the extent of any harm, and the likelihood that the conduct would support a colorable malpractice claim. Because lawyers must keep clients reasonably informed and give them the information needed to make decisions, the Society's lawyers would ordinarily have to disclose the possibility of a significant error or omission. The committee cautioned that not every mistake creates a malpractice claim; some are correctable, some are not harmful, and in some it is questionable whether the lawyer erred at all.
On continued representation, the committee applied DR 5-101(A): the lawyers have a personal-interest conflict where their interest in avoiding civil liability may affect their professional judgment, and they may continue only with the client's informed consent and only if a disinterested lawyer would believe the representation will not be adversely affected. Drawing on N.Y. State 275 (1972) (missed statute of limitations) and N.Y. City 1995-2 (1995), the committee said that where the error is serious and irremediable the lawyer should withdraw after full disclosure and recommend other counsel. It stressed that an indigent client's difficulty in finding new counsel does not lower the standard, and that the Society may not withdraw until it has taken steps to avoid foreseeable prejudice to the client, with court permission required if the matter is in litigation.
Currency note
This opinion was issued in 2000, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Must a lawyer disclose a significant error to the client?
A: The opinion concluded that a lawyer ordinarily must disclose the possibility of a significant error or omission, because the duty to keep clients informed requires giving them the information they need to make decisions, including about a possible malpractice claim.
Q: Are legal aid offices held to the same standard?
A: Yes. The committee concluded a legal services organization is subject to the same ethical standards as other law offices, even though its low-income clients may find it harder to retain new counsel.
Q: Does the lawyer have to withdraw after disclosing?
A: Sometimes. Under DR 5-101(A) the lawyer must withdraw if a disinterested lawyer could not be confident the representation would be unaffected by the lawyer's interest in avoiding liability; where the error is serious and irremediable, the opinion directed withdrawal and a recommendation of new counsel.
Background and rules framework
The opinion interpreted New York's former Code of Professional Responsibility: DR 5-101(A) (personal-interest conflicts and the "disinterested lawyer" consent test), DR 6-102 (limiting liability to a client), and DR 2-110(A)(2) (steps required before withdrawal), along with related Ethical Considerations. The Model Rule analogues are Rule 1.4 (communication), Rule 1.7 (concurrent conflicts, including personal-interest conflicts), and Rule 1.16 (declining or terminating representation). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.4 (communication); MR 1.7 (conflicts of interest); MR 1.16 (withdrawal)
- NY DR 5-101(A); DR 6-102; DR 2-110(A)(2)
Other opinions cited:
- N.Y. State 275 (1972): duty to notify a client of a serious, irremediable error and to withdraw
- N.Y. City 1995-2 (1995): legal services organization should withdraw and advise an indigent client to seek outside counsel
See also
- NY State Bar Op. 1057: Disclosing client information on a motion to withdraw
- NY State Bar Op. 751: Government lawyer's excessive caseload
- NY State Bar Op. 1018: Good-faith referral after withdrawing for a conflict
Source
- Landing page: https://nysba.org/opinion-734/
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