A bad idea for both lawyers and presidents

By Diane Karpman

Karpman

Confession is good for the soul. After nearly three decades, Mark Felt confessed that he was Deep Throat (not the movie, but the Watergate whistleblower). Watergate was a major event in the ethics community and ushered in the MPRE. Many of the key players in the Watergate scandal were California lawyers.

Confession or disclosure is intrinsic in legal practice and is the essence of many of our Rules of Professional Conduct. If you comply with Rule 3-310 (the generic conflict of interest rule) you can usually represent clients while you have divided loyalty. If you fully disclose to a client and get written consent, you are permitted to enter into a business transaction or secure a possessory interest adverse to a client (rule 3-300).

Disclosure eliminates any suggestions of a “cover-up.” Cover-ups not only topple presidential administrations, but can result in liability for breach of the fiduciary duty of loyalty. Cover-ups can significantly enhance disciplinary sanctions. 

A confession of error can start a clock ticking on a claim for legal malpractice, but there are many issues to consider before you open up your checkbook or become chatty. Candor requires that the lawyer inform the client of all matters that might affect the client’s course of action.

Do not go blathering to the State Bar’s Office of Trial Counsel. Hold back in the civil arena, because you don’t have to present yourself on a silver platter to plaintiff’s lawyers for carving. Before you fall upon your sword, remember everyone is entitled to a defense. You should think about whether your acts could impair coverage. As a practical matter, you may need to report the error to your carrier before the next renewal period, and the carrier may want to participate in claims repair or mitigation.

Generally, the lawyer should advise the client of the error (a fact), but should not acknowledge that the error caused a particular damage (which is the consequence), or the definition of causation. As a mantra, repeat that “not all negligence is actionable” and remember to not be a blabbermouth.

Physicians maintain that reporting sentinel events (big deals, like the wrong limb) to patients reduces the cost of litigation and the severity of claims. When confronted with silence or evasion, patients maintain that litigation is the only way to rectify the imbalance of power. Anecdotal evidence indicates that lawyers apologize more than doctors, perhaps because we are wordy.

In the type of coincidence that could only exist in the practice of law, there are a couple of students at Hastings who are friendly. Much to their mutual surprise, their grandpas turned out to be President Nixon and Mark Felt.

“Full disclosure” requires that I confess that when I was sworn in, at the then-fancy Dorothy Chandler Pavilion, someone tapped my shoulder and pointed out that the seat I was sitting in was donated by Richard and Pat Nixon. Foreshadow-ing my future, I should have realized that was propitious, or even a “sign.”

• Legal ethics expert Diane Karpman can be reached at 310/887-3900 or at karpethics@aol.com.