Question 1: Client hired Attorney several months ago to represent Client in negotiations with, and possible litigation against, a potential defendant. Attorney did not discuss with Client the impending impact of the statute of limitations, and Attorney neglected to file suit. Client’s action is now time barred. Negotiations are ongoing with the potential defendant, who is unrepresented, and Attorney believes a settlement favorable to Client is imminent. Must Attorney disclose the mistake to Attorney’s Client?

Answer 1: Attorney is obligated to keep Client reasonably informed about the status of Client’s matter and to explain the matter to the extent reasonably necessary to permit Client to make informed decisions about the representation, including decisions by Client as to continued representation by Attorney. See Rule 4-1.4. Attorney must explain to Client the impact of the statute of limitations, Attorney’s failure to file suit, and other relevant facts. If Attorney reasonably believes the mistake may constitute grounds for a malpractice claim, Attorney should advise Client that there is a statute of limitations for malpractice claims and that it may be advisable for Client to consult with independent counsel about a potential malpractice claim. Attorney should not advise client as to whether a valid claim for malpractice exists. See Rule 4-1.7 and Comment [10]. Attorney need not make an admission of liability to Client. Attorney is not permitted to settle a claim or potential claim for malpractice unless Client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek independent counsel on the matter. See Rule 4-1.8(h). Attorney may consider reporting the error to Attorney’s malpractice provider if Attorney can do so in accordance with Rule 4-1.6, Confidentiality of Information.

Question 2: May Attorney continue to negotiate with the potential defendant on behalf of Client?

Answer 2: Attorney is not permitted to advise the opposing party of the facts related to the statute of limitations if the disclosure would disadvantage Attorney’s Client, unless Client grants informed consent. See Rule 4-1.8(b). Attorney should deal with the unrepresented opposing party in accordance with Rule 4-4.3, which precludes the giving of legal advice by Attorney to the opposing party other than the advice to secure counsel. Attorney must not make a false statement of material fact to the opposing party. Rule 4-4.1. Attorney is not required to terminate the representation of Client due to a conflict of interest caused by Attorney’s error unless there is a significant risk Attorney’s representation of Client will be materially limited by a personal interest of Attorney.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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