Ethics Opinion

Opinion No. 82-1

January 1982

Summary: After legal services have been rendered, an attorney may not obtain from a client a release from liability for potential malpractice claims in exchange for a reduction in the lawyer's fee, unless the client knowingly consents, after full disclosure of all possible claims and the consequences of the release, and is advised to seek independent counsel regarding the settlement.

Facts: A lawyer has inquired as to the propriety of his obtaining a general release of any claims a client might have against him in exchange for his accepting a substantially reduced legal fee. The release sought is not limited to the amount of the fee, or even matters concerning the specific representation. On its face it purports to encompass
any and all claims, demands and liabilities whatsoever ... whether or not such claims are known or unknown which either [lawyer or client] now has or ever had from the beginning of the world to this ________ date against each other ... .
The release also contains an acknowledgement by the client that the lawyer has not breached any legal or ethical duty owed to the client and a waiver by the client of the right to litigate any aspect of the representation. For purposes of this opinion, the committee accepts the lawyer's interpretation of the release as encompassing attorney malpractice.

Discussion: The propriety of releases concerning lawyer malpractice is addressed by Disciplinary Rule 6-102(A), which provides that "A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice."
The committee does not regard DR 6-102 as absolutely prohibiting an attorney from settling a client's claim for past malpractice, and as part of the settlement obtaining a release from the client--such an interpretation would as a practical matter make settlement of malpractice claims impossible. We believe that at a minimum the rule should be interpreted as requiring that the release be the product of a knowing relinquishment by the client of his rights--which means a full disclosure of any possible claims and at least advice to obtain independent counsel in the settlement negotiations, if not the actual obtaining of such counsel. As to the latter requirement, decisions in disciplinary cases in other jurisdictions leave us uncertain whether the Supreme Judicial Court would so interpret DR 6-102(A). Caution therefore suggests that proceeding in the absence of independent counsel is dangerous.
On the facts of this inquiry, the lawyer has made no mention to the client of potential malpractice claims or advised the client to seek independent counsel before executing the release. Hence, on the facts presented, it would be improper for the lawyer to accept the release.

Permission to publish granted by the Board of Delegates, January 12, 1982. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.