Minnesota Statutes Court Rules LWYRS PROF RESP BD OPINION 21. A LAWYER'S DUTY TO CONSULT WITH A CLIENT ABOUT THE LAWYER'S OWN MALPRACTICE

A lawyer who knows that the lawyer's conduct could reasonably be the basis for a non-frivolous malpractice claim by a current client that materially affects the client's interests has one or more duties to act under the Minnesota Rules of Professional Conduct. The requirements of Rules 1.4 and 1.7 are implicated in such a circumstance and the lawyer must determine what actions may be required under the Rules, with particular attention to Rules 1.4 and 1.7.

Since the possibility of a malpractice claim that arises during representation may cause a lawyer to be concerned with the prospect of legal liability for the malpractice, the provisions of Rule 1.7 dealing with a “concurrent conflict of interest” must be considered to determine whether the personal interest of the lawyer poses a significant risk that the continued representation of the client will be materially limited. 1 Under Rule 1.7 the lawyer must withdraw from continued representation unless circumstances giving rise to an exception are present. 2 Assuming continued representation is not otherwise prohibited, to continue the representation the lawyer must reasonably believe he or she may continue to provide competent and diligent representation. 3 If so, the lawyer must obtain the client's “informed consent,” confirmed in writing, to the continued representation. 4 Whenever the rules require a client to provide “informed consent,” the lawyer is under a duty to promptly disclose to the client the circumstances giving rise to the need for informed consent. 5 In this circumstance, “informed consent” requires that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the continued representation. 6

Regardless of whether the possibility of a malpractice claim creates a conflict of interest under Rule 1.7, the lawyer also has duties of communication with the client under Rule 1.4 that may apply. When the lawyer knows the lawyer's conduct may reasonably be the basis for a non-frivolous malpractice claim by a current client that materially affects the client's interests, the lawyer shall inform the client about that conduct to the extent necessary to achieve each of the following objectives: