4.06. Prospective Waiver of Malpractice Claim [Rule 1.8(h) (1)]

Lawyers are creative.  If malpractice claims are such a concern, then why not just put in the engagement letter that says something like this:  “I, Client, agree to waive any and all claims against Lawyer related to representation in this matter.  This specifically includes a waiver of a claim of legal malpractice related to the representation.”  The first response may be that a lawyer cannot do this because a client either is not sophisticated enough to know what a malpractice claim entails.  Even if the lawyer sufficiently explains what a malpractice claim is, such waivers would be inappropriate because it would give the lawyer no incentive to do a competent job, and it is impossible to foresee what is going to happen in the course of the representation that would give rise to a malpractice claim. 

It is true that, ordinarily, a lawyer may not ethically seek a prospective waiver of a malpractice claim. However, Rule 1.8(h)(1) does allow a lawyer to prospectively limit malpractice liability if the client is independently represented in making the agreement.  This may seem strange, and in most cases, such a provision would not be appropriate (could you tell a client coming in for a divorce they are going to have to hire a second lawyer to evaluate the malpractice waiver provision of the fee arrangement?).  A waiver might be appropriate, however, if the client is a corporation that has an in-house counsel.  In that situation, in-house counsel is the independent counsel that could advise the corporate client to accept a malpractice waiver (perhaps to get the company a better rate for representation).