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Opinion date: Aug. 12, 2003

Ethics issue presented:

Must an attorney disclose to the client a presumptive error in his handling of the client's matters where the attorney can rectify the error with no harm to the client?

Facts as presented by Inquirer:

Inquirer represents the plaintiff in a professional liability suit in which a non-pros was entered because inquiring attorney failed to file a Certificate of Merit within 60 days of the filing of a complaint as required by Rule 1042.1 et seq. Inquirer has moved to open the non-pros which is pending. Since the statute of limitations has not expired, Inquirer believes that he can simply re-file the action with no prejudice to the client's position. Attorney inquired whether she was ethically obligated to report the non-pros to the client.

Advice given:

Under Rules 1.3 and 1.4, particularly in reference to Rule 1.4(a), the attorney has a duty to keep the client informed about the status of the matter and under Rule 1.4(b) to explain the matter, to the extent necessary to permit the client to make an informed decision about representation. Attorney was advised that she should advise the client of the non-pros for both practical and ethical reasons. First, as a practical matter, the client is likely to find out about the non-pros in other ways which would reflect poorly upon the lawyer and make it appear that the lawyer was attempting to conceal the matter. From a strictly ethical standpoint, inquirer was advised that even if the claim can be re-instated, a non-pros of a case is a significant event which should be disclosed under Rule 1.4(a) for the purpose of keeping the client fully informed and is a matter that should be disclosed under Rule 1.4(b) to enable the client to make an informed decision about whether inquiring lawyer should continue to handle the case.

The foregoing is advisory only and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania nor in court. It carries only such weight as an appropriate reviewing authority may choose to give it.

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