This article considers New York State Bar Association Committee on Professional Ethics Opinion 1092 (May 11, 2016) (Opinion 1092). Although Opinion 1092 is titled “Duty to Disclose Malpractice of Co-Counsel,” it actually reviews both lawyers’ duty to reveal their own malpractice as well as the situation where a lawyer becomes aware of the malpractice of the lawyer’s co-counsel. Bar association ethics committees generally focus narrowly on lawyers’ obligations under the applicable rules of professional conduct, and disavow expressing opinions that address broad issues of legal liability, but this opinion is helpful in considering both professional responsibility obligations and malpractice implications in both of these situations.

Informing Clients

Before addressing the situation of errors committed by co-counsel, Opinion 1092 succinctly sets out both the applicable rules of professional conduct and governing New York case law on lawyers’ duties to inform clients of their own errors and omissions. While the earlier ethics opinions cited in Opinion 1092 (notably the same committee’s Opinions 275 (1972) and 734 (2000)) were issued under the Code of Professional Responsibility, Opinion 1092 is based on the Rules of Professional Conduct (RPCs) now in effect but is entirely consistent with those earlier opinions. The relevant RPCs on which Opinion 1092 is founded are 1.4, governing the ethical obligations of a lawyer regarding communication with the client; RPC 1.7, governing conflicts between the lawyer’s own and the client’s interests; and RPC 1.16, governing the lawyer’s duty to withdraw from representation.

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