When a lawyer needs a lawyer

Have you committed negligence in representing a current client? Do you suspect you may have committed negligence in a current matter? Don’t talk about your mistakes with other lawyers in your firm! According to Richard Zitrin in his recent article in The Recorder, the courts have held that such internal discussions, even if used as a teaching device to make sure the mistake isn’t repeated, can be discovered in a malpractice case.  Only if you hire outside counsel and talk with such counsel are such discussions privileged. According to Zitrin, the client is owed the duty of competence as well as the duty of candid communications. These multiple duties trump whatever duty the lawyer may assert.

There is something wrong when you are not allowed to talk with other members of your own firm either to explore if something really was negligent, or how to deal with it for the betterment of all concerned and clearly how to make sure it doesn’t happen again in the future. I suspect that talking internally about the best way to talk with your client about the actions taken or not taken would also not be privileged. This conclusion, at least to me, is counter-intuitive.

While the rule seems to be clear in California, the rule is not so clear elsewhere. It can only be hoped that as this issue receives more light, there will be obvious exceptions for issues as I’ve noted above.


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