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A recent American Bar Association publication reminded its readers that the ABA Standing Committee on Ethics and Professional Responsibility's Formal Opinion, Rule 1.4, requires that ethical lawyers “self-report” to a current client if they have erred in the client's representation and if the error is material. The test is whether a disinterested lawyer would conclude that the error (a) is reasonably likely to harm or prejudice the client; or (b) is of such a nature that it would reasonably cause a client to consider terminating representation even in the absence of harm or prejudice.

For the majority of our readers, whom we assume may not have received or read the ABA's reminder of this duty, we take this opportunity to remind them of this reporting obligation. ABA Model Rule 1.4(a) requires a lawyer to promptly inform a client (a) of any decision or circumstance which requires the client's informed consent; (b) to reasonably consult with the client about the means by which the client's objectives are to be accomplished; and (c) to “keep a client reasonably informed about the status of a matter.” Rule 1.4(b) also requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In a broader context, the guiding principle which furnishes the foundation for Rule 1.4 is that 'the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interest.”

Various jurisdictions have over the years addressed the self-reporting obligation as a corollary to Rules 1.4 and 1.7(b). New Jersey's Supreme Court Advisory Committee on Professional Ethics in its Opinion 684, published in 1998, has stated that “when the attorney ascertains malpractice may have occurred, even though no damage may yet have resulted, has an obligation to disclose this to his or her current client.”

In addition, our Supreme Court in the 1997 case of Olds v. Donnelly, reminded attorneys that they have an obligation to notify clients when the client may have a legal malpractice claim, even though notification will be adverse to the attorney's own interest. The court there relied on RPC 1.7(a)(2) which states that a conflict of interest arises if “there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer;” which, therefore, requires the client to be advised of the attorney's error in order for the client to make an informed decision as to whether to discharge the lawyer or to consent to the conflict of interest.