Q: Dear Ethics Lawyer, A well-meaning but less competent friend of mine discovered that he has blown a statute of limitations for a client who happens to be his good friend. He feels terrible about this, and wants to make it right. Fortunately, he and his firm have the resources to do so without calling upon their malpractice insurance, the deductible of which would be a larger amount anyway.
Can he and his firm go to his client-friend, confess the error and immediately pay the full amount of damages the client might have obtained in order to solve the problem?
A: It is admirable (and good client and personal relations) that your friend and his firm wish to rectify the mistake. The Model Rules allow this action, but with a specific requirement that the client be advised in writing of the desirability of seeking, and be given an opportunity to seek the advice of independent counsel, for example in this case about what the full amount of damages might be. Rule 1.8(g)(2). And, of course, the lawyer still has all the other duties that attach to a lawyer-client relationship, including the duty under Rule 1.4 (b) to explain the matter sufficiently to permit the client to make informed decisions.