When Clients Sue Their Lawyers For Failing To Report Their Own Malpractice

What consequences should befall the lawyer who fails to disclose a significant error to his client? In a previous article, I examined the lawyer’s ethical duty to report his own malpractice to his client, a topic that had previously received little attention from courts and commentators, and concluded that the duty is well-grounded in Rules 1.4 and 1.7. Therefore the lawyer who fails to disclose his error to his client is subject to discipline. This Article addresses the client's ability to state an independent claim against the lawyer for failing to disclose his own malpractice -- a topic that has divided the courts -- and argues that clients should be able to assert such a claim, separate and apart from the underlying malpractice claim based on the original error.

Specifically, clients should be able to assert an independent breach-of-fiduciary duty claim seeking equitable remedies including fee forfeiture based on the lawyer’s failure to self-report his error. This Article creates a blueprint for courts and practitioners analyzing such a claim.