Concept
Consequences of a Violation
Prospective agreements limiting malpractice liability
Consequences of a Violation
A lawyer violates Rule 1.8(h)(1) by making an agreement that prospectively limits the lawyer's liability to a client for malpractice when the client is not independently represented in making it.1 The violation is complete when the agreement is made. No malpractice has to occur, and no claim has to arise, before the wrong exists. Two consequences follow. A release or limit obtained in breach of these rules subjects the lawyer to discipline, and a court is likely to deem it unenforceable.2
The two consequences reach different targets. Discipline answers the lawyer's breach of the conduct rule. Unenforceability protects the client's claim from a limit the rule forbade. The wording of the two also differs in strength. The source says a violation will subject the lawyer to discipline, but says a court is only likely to refuse enforcement. A careful answer keeps that difference: discipline is the sure consequence, and unenforceability is the probable one.
The consequences attach only when a condition for a permitted agreement is missing. Once one is missing, the next question is how far the prohibition reaches inside a firm. Rule 1.8(k) answers it: "While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them."3 Paragraph (h) lies within paragraphs (a) through (i), so the ban on prospective malpractice limits spreads from one lawyer to every lawyer associated in the firm. The word while ties that spread to the period of association.
Imputation closes an obvious route. A firm cannot escape the prohibition by having a different lawyer present the clause, because a colleague who attends the meeting or countersigns the letter is also a lawyer associated in the firm. A colleague down the hall is no substitute for independent counsel either, since that colleague belongs to the firm whose liability the clause would limit. The usual exam error is to look for the one lawyer who personally made the agreement and clear everyone else.