Outsmart the MPRE: Limiting Liability for Malpractice under Rule 1.8

If you’re seeking bar admission, chances are you’ll need to take the Multistate Professional Responsibility Examination (MPRE). Passing the exam is a requirement for admission in most jurisdictions. The MPRE primarily tests the American Bar Association’s Model Rules of Professional Conduct.

On the MPRE, 6–12% of the questions test rules related to competence, legal malpractice, and civil liability. Thus, you’ll see approximately 3–7 questions testing these concepts. The examiners often include fact patterns involving lawyers who wish to limit their liability for malpractice. In the typical fact pattern, the lawyer asks a client to sign a release of liability for a past or future claim of malpractice. But is it proper for a lawyer to obtain a release of malpractice liability from a client? This tricky area is governed by Model Rule of Professional Conduct 1.8(h).

A lawyer may obtain a release of malpractice liability from a client. However, Rule 1.8(h) places important limitations on a lawyer’s ability to limit and settle malpractice claims. 

Suppose a lawyer is concerned about malpractice claims and wishes to limit her liability by making her clients prospectively waive any malpractice claims as a term of representation. Is this permissible? 

The prospective limitation of legal-malpractice claims is highly disfavored. Rule 1.8(h) provides that a lawyer may not make any agreement with a client that prospectively limits the lawyer’s liability for malpractice unless the client is independently represented in negotiating and entering the agreement.

Rule 1.8(h) also governs settling malpractice claims. Generally, a lawyer may not settle a pending or potential malpractice claim with an unrepresented client or former client unless that person is advised in writing that he should seek the advice of independent legal counsel and is given a reasonable time to do so.

Both situations described above—prospectively limiting malpractice claims and settling malpractice claims—may appear on the MPRE. If a fact pattern concerns a lawyer who obtains a release from a client, work through the answer options carefully. 

Wrong answer options often focus on irrelevant issues. For example, watch out for answer options that focus on contract-formation principles, such as consideration, or on the reasonableness of a fee arrangement. The true issue isn’t whether the attorney provided consideration to obtain the client’s release of malpractice liability. Nor is the issue whether the attorney’s fee is reasonable.

To select the right answer, you’ll need to know the procedural requirements a lawyer must follow to limit liability for malpractice. These requirements are stringent because the rules disfavor limiting malpractice liability. Commit them to memory:

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