To Withdraw or Not to Withdraw
December 30, 2015
So you may recall that in a previous blog, we addressed the issue of whether you must disclose a mistake or error in judgment to a client, and if so, what must you say. In this blog, the question is whether, having made an error, must you withdraw from representation, assuming the client wants you to continue? The answer is, it depends. If the continued representation would result in a conflict of interest, you must withdraw. There are many instances where your interest in rectifying the mistake (and avoiding personal liability) is consistent with the client’s interest in having the problem fixed. If you believe that you can mitigate the damage to the client, you may be in the best position to do so, and therefore, may try to do so if you can. In those instances where your interests are aligned with those of your client, you would not be required to withdraw from the representation. If, however, your desire to avoid liability could be in conflict with client’s best interests, or if there is nothing that can be done by you to rectify the error, you must withdraw from the representation.
The ethics opinion, 2015 FEO 4, gives examples of the kinds of mistakes that can and perhaps should be rectified by the lawyer making the mistake. “[A]n error made in a title search may be readily repaired or a motion in limine may prevent the use of privileged communications that were improperly produced in discovery. It is often in the best interest of both the lawyer and the client for the lawyer to attempt such repair.” The opinion goes on to say, “when an error is such that the client’s objective can no longer be achieved, as when a claim can no longer be filed because the statute of limitations has passed, the lawyer must disclose the error to the client and terminate the representation.”
No matter what the circumstances surrounding the error, we always recommend that you consult your liability carrier before deciding whether to proceed with or to terminate the representation.