You missed the prescriptive period. The case is over. Kaput. Do you have to tell your client?
Yes, according to a recent ethics opinion from the North Carolina State Bar Association. See Formal Ethics Op. 2014-4, N.C. State Bar Assoc., Disclosing Potential Malpractice to a Client (Jul. 17, 2015). Any “material errors that prejudice the client’s rights or interests” or that give rise to a malpractice claim “must always be reported to the client.” Id. However, minor errors are different: “[I]f the error is easily corrected or negligible and will not materially prejudice the client’s rights or interests, the error does not have to be disclosed to the client.” Id.
As to what needs to be said, the lawyer should not address whether a legal malpractice claim may exist and should not “provide legal advice about legal malpractice.” After all, the lawyer has a potential personal-interest conflict in avoiding liability once the lawyer’s client has a viable malpractice claim.
This opinion provides sound advice to Louisiana lawyers. In Lomont v. Myer-Bennett, No. 2014-C-2483 (La. Jun. 30, 2015), the Louisiana Supreme Court recently held that Louisiana Rule of Professional Conduct 1.4 requires a lawyer to keep the client “reasonably informed” about the status of the client’s case—including about any malpractice by the lawyer.