ABA Journal - Law News Now

Legal Ethics

Made a Mistake? Talk to Counsel, But Don’t Get It in Writing

Posted Jun 27, 2008, 03:38 pm CDT
By Martha Neil

Lawyers inevitably make mistakes in practice, and when they do, many—correctly—seek advice from another lawyer about resolving the situation.

But that advice, if given by another lawyer within the erring lawyer's own firm, might not be privileged, reports the New York Law Journal, in an article reprinted in New York Lawyer (reg. req.).

"The rationale is that all lawyers within the firm owe a fiduciary duty to the client and so there can be no privileged conversations among attorneys about the client's matter," the article explains, citing several New York cases.

Hence, such advice, within the lawyer's own firm, should not be provided in writing, the article suggests. (It also suggests that orally informing a supervisor at the firm about the mistake should be step No. 1, even before consulting counsel.)

And it's best, too, to ask for advice orally, not in a written communication, the legal publication notes. "Certainly, sending an e-mail saying, 'I need your help because I think I just committed malpractice,' is ill-advised."

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