During a CLE presentation a few years ago, I asked attendees if a preliminary internal discussion intended to determine whether a malpractice or ethical misstep had occurred on any given matter would lead to the creation of a conflict of interest that would in turn require disclosure and perhaps that the firm withdraw. Most attendees simply saw no issue and dismissed the question as irrelevant. Their initial reasoning was that clients and the firm are better served if possible missteps are brought to light, discussed internally, and fixed when possible. Then the argument went further with some suggesting that with the alternative view, where a conflict would arise, would chill anyone’s willingness to investigate whether a misstep had occurred and no one would be served by this approach. In their opinion, preliminary discussions should never lead to a conflict of interest and in fact should be strongly encouraged. To this day my response to the argument remains, well maybe.
I absolutely agree that everyone in any law firm should be encouraged to share questions about a possible misstep and feel comfortable in having a discussion about or investigation into whether an actual misstep actually occurred. This is not something that I want to see chilled; but there is a problem. Sometimes these kinds of internal discussions and investigations lead to a flurry of emails between any number of firm attorneys and a discoverable record may be in the making. The quick thinking among us will immediately say, “Hey, wait a minute, these internal conversations are privileged.” Unfortunately that’s not necessarily true. If these conversations are over a concern related to a current client’s matter, then there very well may be no privilege because the fiduciary duties owed to your current clients can outweigh your desire to keep such communications private.
Now sometimes the internal review of the questioned misstep will result in a clarification that everything is fine. In that case my concerns disappear for the most part. At other times, however, the outcome will be a recognition that a misstep of some sort has indeed occurred and it is here that disclosure becomes necessary even if correcting the misstep is possible. The reason is that we are talking about a misstep that has occurred on a client matter. Taking corrective action should never occur absent client awareness and approval because the matter belongs to the client and the client always has the final say as to what should happen with their matter. This means that there are now only two real options. Either disclose what has happened and, with client consent, try to fix the situation if possible or withdraw and shift into defensive mode while still doing all that you can to enable the client to move forward with other representation. Why is this? Come at it from this perspective. In a subsequent malpractice claim how does one try to convince a jury that the corrective action that was taken absent client awareness and approval was not only done entirely for the benefit of the client but without any regard to protecting the interests of the involved attorney or the firm? That’s a tall order.
Unfortunately here is the reality. At the beginning of any inquiry into whether or not there is a problem, the firm will not know what the outcome will be and if emails are already flying about there’s a potential problem. You don’t want to write an email that later may prove to be the “smoking gun” in a malpractice claim. You know. It’s the one that begins “Oh God, I think we may have a problem. My associate just told me…” So please recognize that while email is a wonderful tool, there are going to be times where a little caution is in order and looking into whether a potential misstep has occurred is going to be one of those times.