Limiting your liability for malpractice claims in correspondence
Lawyers are fond of limiting their own liability. That shouldn’t come as a surprise. Consider the following scenario. Lawyer sends a cover letter to Client at the end of the case. It says, “If you do not notify me within 15 days that you are unhappy with this result, you waive any claim for malpractice.” Or, such a cover letter could be to a bill or invoice. Would this clause be effective as a waiver of malpractice claims?
Formal Advisory Opinion 05-8
The State Bar addressed such a question and said, “No.” The opinion notes that there was apparently a practice of some lawyers using a rubber stamp to say
If you disagree with anything set forth in this communication or the way I have represented you to date, please notify me by certified mail at the address set forth herein immediately. If I do not hear from you, it shall be an acknowledgment by you per our agreement that you are satisfied with my representation of you to date and you agree with my statements in this communication.
The State Bar said that this practice created an adversarial relationship between Lawyer and Client. This, of course, is “expressly forbidden by Rule 1.8(h)[.]”
A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.
Certainly if a client is unhappy, they may raise a malpractice claim. Or file a bar grievance. And the Rules provide that a lawyer cannot create a conflict with the client to protect their own interest; indeed, nor any other interest. What can a lawyer do?
If there is some controversy, the best thing the lawyer can do is advise the client to seek independent counsel. And possibly withdraw from the representation. A client can waive claims for malpractice, if they have been advised by someone other than the lawyer who wants the waiver. Without independent advice, the waiver is not likely to work.
So if your lawyer wants you to sign a waiver, you should seek independent counsel. Have another lawyer look at what you’re going to sign. They will be able to advise you whether it’s wise to do so. And, as a lawyer, avoid creating situations that a complaining client could raise later on. If in doubt, get an independent opinion about the situation. And do it before the matter becomes a bar grievance. The earlier contentious matters are handled, the better.
Chandler & Moore Law regularly talks with clients and lawyers about contentious settlement matters. We’re happy to speak with you about your matter.