Attorneys are human.  They make mistakes.  However, how an attorney responds to a mistake may be more important than the mistake itself.  In the face of potential civil liability, sanctions or disciplinary proceedings, care must be taken.

First, don't panic.  Oftentimes, mistakes are correctable and, if addressed properly, will result in nothing more than some minor inconvenience.  A disinterested opinion from another lawyer is essential, as you will lack objectivity.  Having made a mistake means you have a legal problem.  A lawyer with experience representing other lawyers brings neutrality, knowledge and experience to a problem that you may lack.  Another lawyer may be able to point out ways to salvage a case you thought was lost or ways to mitigate any damage resulting from the mistake, pathways that you may not see.  A partner in your firm, the head of your practice group, or the firm's general counsel could serve this purpose.  Alternatively, consider reaching out to an ethics or risk management hotline or similar resource.  Many professional liability insurance plans have a hotline benefit.

Once you confirm that you have made a mistake that is not easily corrected and is of such significance that it impairs your client's case or matter, consult your insurance policy and notify your professional liability carrier immediately.  The importance of this cannot be understated.  Failure to give timely notice of a claim may result in the loss of coverage.  Another way to jeopardize coverage is by making unnecessary admissions or settling or offering to settle your client's claim without first notifying your carrier and obtaining its permission.  This is often spelled out in the policy's terms and conditions.  Some carriers offer free pre-claims assistance which can be invaluable in navigating the murky and sometimes turbulent waters of a potential claim.

You may also have to inform your client of the error.  Ethics rules govern, and you should consult your state's rules.  Generally, lawyers have a duty to keep a client reasonably informed about the status of a matter, to promptly comply with reasonable requests for information and to explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Model Rule 1.4.  Not all mistakes must be reported to the client, particularly if the client is not harmed and the case has not been prejudiced and unduly delayed.  However, if you have determined it necessary to give notice to your carrier, disclosure obligations under Model 1.4 are likely triggered. 

Once the decision is made to inform the client, the next consideration is exactly what to tell the client.  Again, ethical rules govern, and you should consult your state's rules.  However, at a minimum, disclosures to clients must be accurate and must include the material facts and their significance.  Do not make unnecessary or inappropriate admissions such that you have committed malpractice, that you caused the client's loss or that you owe the client a certain amount as a result of your error.  These are admissions that can be used against you in later proceedings as party admissions, and, moreover, they may not be true.  In legal malpractice cases, there are many defenses that may be asserted to defeat a finding of liability.  Additionally, it would be a conflict of interest to offer advice to a client about a potential claim against yourself.  An admission could also constitute a failure to cooperate with your insurance carrier, thereby jeopardizing your coverage.

Once you have confirmed the necessity of the disclosure and the scope, the next step is making the disclosure.  It is best to do so by a personal telephone call or in a meeting.  Always follow up with a dated writing, confirming what was disclosed.  If your representation of the client is ongoing, the potential that a conflict exists needs to be addressed and appropriate action taken, if necessary, which includes obtaining the client's informed consent, confirmed in writing.  Model Rule 1.7.  If the potential claim could interfere with the lawyer's exercise of judgment on behalf of the client, the basis for the conflict must be disclosed, i.e., the potential claim for malpractice, so that the client can give his informed consent to the continued representation.

However, when confronted with a mistake, the best advice is not to panic.  Don't ignore the problem or try to cover up the error.  By taking prompt, appropriate action, you will meet your ethical obligations and may be able to correct the error or minimize its consequences, avoiding potential civil liability or disciplinary proceedings.  At a minimum, you will have complied with the duties owed to your client, your partners, and your professional liability carrier.