THE DUTY TO SELF-REPORT MALPRACTICE TO THE CLIENT ducted interviews of twenty (20) lawyers and con-cluded that lawyers deceive their clients more often than acknowledged by the rules of conduct or the organized bar. 2 Professor Lerman wrote “[o]ne of the most common reasons that lawyers deceive clients is to avoid having to disclose their mistakes.” 3 However, our hypothetical litigation partner could well have assumed that the transac-tional partner’s work was performed competently when he agreed to litigate the dispute. But if the litigation partner later discovers that his corporate partner’s legal work (e.g. the insertion of a poorly drafted term into the critical contract) may have been to blame for the failure of the deal and the subsequent litigation, then the firm may have an ethical obligation to report that fact to the client, and the lawyers involved might be subjected to discipline for failing to do so. 4 See, e.g. , In re Hoffman, 700 N.E.2d 1138, 1139 (Ind. 1998)(Respondent attorney failed to explain adequately to his clients the effect of a dismissal of the tort claim in violation of Ind. Prof. Conduct Rule 1.4(b). Further, he continued to represent the clients after it became apparent that the representation might be materially limited by the respondent’s own interests, in violation of Prof. Cond. Rules 1.7(b) and 1.16(a)(1)). The ethical misconduct would not be the drafting error itself, but rather the failure to com-municate with and inform the client that a mater-ial mistake was made in the course of the representation. From an ethical perspective, con-cealing the mistake from the client is more serious than the mistake itself. The lawyer might also rea-sonably believe that whatever mistake was made can be “fixed” so that disclosure to the client is not necessary. Support for the duty to self-report a material mistake to the client can be found in the Virginia Rules of Professional Conduct. Rule 1.4(a) and (c) require that a lawyer keep a client reasonably informed about the status of a matter and inform the client of pertinent facts that may significantly affect settlement or resolution of the matter. Rule 1.4(b) requires that the lawyer “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Among the most critical deci-sions that the client has to make regarding the representation in this situation are (1) whether the client has a viable malpractice claim arising out of the representation, and, if so, whether to pursue it now or later and (2) whether to con-tinue the current representation. Obviously, the www.vsb.org client can’t make an informed decision regarding these issues without being informed about the potential claim. Comment [5] to Rule 1.4 states in pertinent part “[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representa-tion.” Comment [7] states in part “[a] lawyer may not withhold information to serve the lawyer’s own interest or convenience.” According to The Restatement (3d) of the Law Governing Lawyers “[i]f the lawyer’s conduct of the matter gives the client a substantial malprac-tice claim against the lawyer, the lawyer must dis-close that to the client.” 5 As Professor Cooper notes: The only case cited in the Restatement for this proposition is In re Tallon , 447 N.Y.S.2d 50 (App. Div. 1982), a two-page attorney dis-ciplinary opinion from the New York Appellate Division. In Tallon , the attorney allowed the statute of limitations to run on his client‘s claim for property damages resulting from an auto accident, and there-after paid the client out of his own funds, without disclosure of his error. Citing New York DR 1-102(A)(4), which provides that a lawyer shall not [e]ngage in conduct involv-ing dishonesty, fraud, deceit, or misrepresen-tation, the appellate court noted that “[a]n attorney has a professional duty to promptly notify his client of his failure to act and of the possible claim his client may have against him.” The court found that Mr. Tallon was subject to discipline because, inter alia, “he had obtained a general release [from the client] without advising her . . . of the claim she had against him for malpractice in letting the Statute of Limitations run on her prop-erty damage claim.” 6 From an ethical perspective, concealing the mistake from the client is more serious than the mistake itself. Aside from the duties set out in the Rules of Professional Conduct, the fiduciary duties of loy-alty, candor and communication require that the lawyer disclose his or her malpractice on the client’s matter. Not cited in the Restatement is Neel, v. Magana, Olney, Levy, Cathcart & Gelfand , ETHICS | Vol. 63 | August 2014 | VIRGINIA LAWYER 21