The Core Prohibition

Prospective Limits on Malpractice Liability

The Core Prohibition

Model Rule 1.8(h)(1) forbids a lawyer to “make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.”¹ Four phrases do the work. “Make an agreement” puts the lawyer on the signing side, so the rule reaches clauses the lawyer writes into the deal. “Prospectively” fixes the timing: the agreement comes before any malpractice claim exists, whether in the engagement letter on the first day or at some later point in the matter. “Liability to a client for malpractice” names the target, which is the client's remedy for the lawyer's own professional failures. The last phrase, “unless the client is independently represented in making the agreement,” states the exception, and later sections develop it.

The client's signature does not rescue the clause, and the reason lies in who wrote it. The lawyer who drafts a cap is the person it protects, and the client who signs is the person it costs. A lawyer owes a client fiduciary duties that include “a duty to explain matters” under Rule 1.4(b).² A lawyer is poorly placed to explain a clause whose only beneficiary is the lawyer. The exception reads as a response to that problem, because it puts a second lawyer with no stake in the clause on the client's side of the table.

One secondary account states the rule with a second condition. It says Rule 1.8(h) forbids lawyers from limiting their malpractice liability by contract unless such agreements are recognized as lawful and the subscribing client is represented independently.³ On the face of the Model Rule, independent representation is the stated condition. Whether the limit is also lawful is a further question about the law governing the agreement, taken up in the later sections on conditions.

The rule also has a boundary. Suppose an engagement letter fixes the hourly rate, the retainer, and the billing schedule but says nothing about the lawyer's responsibility for errors. That letter does not engage the rule, because nothing in it reduces what the client could recover for malpractice. The prohibition is triggered by a term that limits the lawyer's liability, and fee terms alone do not do that.⁴