Following is the 69th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 1 – “Lawyer-Client Relationship,” focusing on the prohibition of an attorney limiting their liability to a client without adequate representation.
This Rule of Professional Conduct, as revised, is as follows:
Rule 1.8.8 Limiting Liability to Client
A lawyer shall not:
(a) Contract with a client prospectively limiting the lawyer’s liability to the client for the lawyer’s professional malpractice; or
(b) Settle a claim or potential claim for the lawyer’s liability to a client or former client for the lawyer’s professional malpractice, unless the client or former client is either:
(1) represented by an independent lawyer concerning the settlement; or
(2) advised in writing by the lawyer to seek the advice of an independent lawyer of the client’s choice regarding the settlement and given a reasonable opportunity to seek that advice.
A couple of minor changes appear in the revised version of what was formerly Rule 3-400 in the CBA’s RPC. Rule 1.8.8 in the new RPC, as set forth above, has added “or former client” to subdivision (b), referring to an attorney’s claim or potential claim for liability to a client. It has also added a second exception to the prohibition involved with settling a claim. Now, as an alternative to notifying a client or former client in writing to seek the advice of an independent lawyer in connection with the current attorney’s liability, this rule’s requirement is waived if the client or former client is “represented by an independent lawyer concerning the settlement.”
The American Bar Association (ABA) Model RPC includes the same information found in CBA’s RPC Rule 1.8.8, although slightly rearranged. The regulations governing an attorney limiting his or her liability to a client are in Rule 1.8(h) in the ABA rule. The content in subd. (h)(1) matches the content in CBA’s Rule 1.8.8(a) and (b)(1). The content in ABA’s Rule 1.8(h)(2) mirrors the wording in CBA’s Rule 1.8.8(b) and (b)(2).
Benefit: Generally speaking, this rule’s new exception to the prohibition against an attorney limiting his or her liability to a client (or former client) provides attorneys with greater flexibility, reducing their risk of possible future accusations of legal malpractice.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 23 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916) 996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Client Rights, Limited Liability, Parker Law Group, Port Parker