Revision to CBA Formal Opinion 113

September 2, 2015

By: John M. Tanner

The CBA Ethics Committee has updated Ethics Opinion 113 (the so-called “Mea Culpa” Opinion).  The updated Opinion addresses lawyers’ ethical obligations when they have erred.  As in-house counsel, part of your job may be to supervise outside counsel. So, in addition to knowing your own ethical duties, you need to be aware of outside counsel’s ethical duties to you as in-house counsel. 

Updated Opinion 113 does not change the distressingly low bar for lawyers in disclosing their own errors.  It still does not require a lawyer to say he committed malpractice, and indeed suggests that the lawyer not do so.  As it did previously, the Opinion simply requires a lawyer to advise the client to have another lawyer review the matter.  If an in-house lawyer hears this from outside counsel, he should take it seriously.

The good news is that updated Opinion 113 slightly raises the standard regarding the substance of the disclosures a lawyer needs to make when he or she has erred.  Updated Opinion 113 states that a lawyer should also mention the statue of limitations for malpractice claims against an erring lawyer to the client.

Practice tip:  While updated Opinion 113 does not require outside counsel to voluntarily disclose their own errors, the ethical rules still require lawyers to answer questions from clients truthfully.  Thus, if your outside counsel is acting unusually, has changed behavior (for example, not having the client review pleadings before they are filed when it previously had done so), or makes the dreaded reference to “a fresh set of eyes” looking at the matter, then in-house counsel should ask outside counsel pointed and direct questions.  The lawyer is obligated to answer them truthfully, notwithstanding updated Opinion 113.  The lawyer is required to provide facts if requested.

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

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