Failure to Disclose Health Condition is Grounds for Malpractice

Attorneys have an ethical duty to keep a client reasonably informed about the status of the representation.  The rules of professional conduct generally require a lawyer to provide the client with sufficient information to participate intelligently in decisions concerning the objectives of the representation.  Fulfilling this ethical obligation, however, may sometimes require the attorney to inform the client about personal matters that may affect the attorney’s ability to represent the client’s interest. For example, an attorney may be obligated to disclose her own health condition to a client, especially when imminent death is foreseeable.

Earlier this year, in Cabrera v. Collazo, the Supreme Court of New York Appellate Division considered a legal malpractice claim brought against an attorney who was retained to represent a plaintiff in a wrongful death action.  Before he could file the compliant, the attorney was diagnosed with cancer and died.  Eleven days later, the statute of limitations in the wrongful death action expired, precluding the plaintiff’s claims.  The plaintiff subsequently filed suit against her former attorney’s estate for legal malpractice. 

In response, the executors of the attorney’s estate asserted a defense that the attorney could not be held liable for malpractice because he died prior to the expiration of the statute of limitations.  In rejecting this defense, the court noted that the attorney knew, or should have known, that his terminal illness presented the immediate risk that his ability to represent his client’s interests might be impaired.  Because his death was foreseeable, and the attorney failed to take steps to file the complaint, inform the client of the impending statutory deadline, or involve other counsel, the court held that the plaintiff had plead a prima facie legal malpractice claim against the attorney.  

The court framed the issue as one of foreseeability. Accordingly, attorneys are not obligated to disclose common, less serious ailments so long as the attorney reasonably foresees that the condition will not negatively impact the representation. In the foregoing scenario, the dire diagnosis seems to support the court’s conclusion but there are other instances when the attorney’s duty is not so clear.

Communication between attorney and client is necessary to effective representation.  Where an attorney knows that her ability to represent the client may be limited by personal circumstance, the attorney must take immediate action to inform the client of the limitation and pursue available options to maintain the client’s interests.  Failure to take early action to keep the client reasonably informed could result in liability.

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