Can a lawyer add a notice to client letters saying the client waives any malpractice claim unless they object within a short period?

Plain-English summary

The opinion addresses a practice, brought to the Board by a member of the Investigative Panel of the State Disciplinary Board, in which lawyers rubber-stamp client correspondence with a notice telling the client to object immediately if dissatisfied, and stating that silence is an acknowledgment that the client is satisfied and agrees with the lawyer's statements. The intended effect is to create a short window in which the client must voice dissatisfaction or be treated as having agreed and, in effect, waived any malpractice claim.

The Board concludes the practice attempts to exonerate the lawyer from, or cause a waiver of, malpractice claims, putting the lawyer in an adversarial position with the client. While advising the client on one hand, the lawyer is trying to limit or excuse liability for that advice on the other, placing the lawyer's personal interests ahead of the client's.

The opinion holds that this conduct is expressly forbidden by Rule 1.8(h), which provides that a lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. Because the client receiving the stamped notice is not independently represented, the lawyer may not condition representation on a malpractice waiver or attempt to cause such a waiver through language in client correspondence. The opinion states the practice violates Rule 1.8(h) and subjects the attorney to discipline, with a maximum penalty of a public reprimand.

In practice

The opinion holds that, under Georgia Rule 1.8(h), a lawyer may not use a stamped notice (or similar correspondence language) designed to make a client waive malpractice claims by failing to object within a short period. The opinion treats the absence of independent representation as decisive: a prospective limit on the lawyer's malpractice liability is permitted only if allowed by law and the client is independently represented, neither of which is satisfied by a unilateral notice on client letters. The opinion identifies the maximum penalty for the violation as a public reprimand.

Common questions

Q: Can a lawyer put a notice on letters saying the client waives malpractice claims unless they object quickly?

A: No. The opinion concludes that such a stamped notice attempts to cause a prospective waiver of malpractice claims and violates Rule 1.8(h), because the client is not independently represented in making the agreement.

Q: Why is this treated as putting the lawyer against the client?

A: The opinion explains that the lawyer is advising the client while simultaneously trying to limit or excuse liability for that advice, which places the lawyer's personal interests ahead of the client's and creates an adversarial posture toward the client.

Q: What is the penalty for using such a notice?

A: The opinion states that the practice violates Rule 1.8(h) and subjects the attorney to discipline, for which the maximum penalty is a public reprimand.

Background and rules framework

The opinion interprets Georgia Rule of Professional Conduct 1.8(h) (agreements prospectively limiting malpractice liability; Model Rule 1.8(h)), quoted in pertinent part, which bars such an agreement unless permitted by law and the client is independently represented in making it. This opinion replaced the earlier FAO 96-2 and was modified to correct an error by Supreme Court order on April 11, 2008.

Citations and references

Rules of Professional Conduct:

• Georgia RPC 1.8(h) (prospective limits on malpractice liability) / Model Rule 1.8(h)

See also

• GA Ethics Op. 05-2: In-House Hold Harmless Deals
• ABA Formal Op. 481: Duty to Inform Client of Material Error

Source

• Landing page: https://www.gabar.org/handbook?rule=rule460

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Click here for an explanation regarding the history of this opinion.

FORMAL ADVISORY OPINION BOARD NO. 05-8
Approved And Issued On April 4, 2006 Pursuant To Bar Rule 4-403
By Order Of The Supreme Court Of Georgia Thereby Replacing FAO No. 96-2
(Modified to Correct Error Pursuant to Supreme Court Order on April 11, 2008)
Supreme Court Docket No. S06U0800

Please note that in the reference to Rule 1.8(h) in this opinion, Rule 1.8(h) is only quoted in pertinent part.

QUESTION PRESENTED:

The question presented is whether an attorney may stamp client correspondence with a notice stating that the client has a particular period of time to notify the lawyer if he/she is dissatisfied with the lawyer and that if the client did not notify the lawyer of his/her dissatisfaction within that period of time, the client would waive any claim for malpractice.

SUMMARY ANSWER:

A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. Therefore, in the absence of independent representation of the client, the lawyer should not condition the representation of a client upon the waiver of any claim for malpractice and should not attempt to cause the waiver of any claim for malpractice by the inclusion of language amounting to such a waiver in correspondence with a client.

OPINION:

A member of the Investigative Panel of the State Disciplinary Board has brought to the attention of the Formal Advisory Opinion Board a practice by lawyers of adding the following language (by rubber stamp) to correspondence with clients:

Important Message
If you disagree with anything set forth in this communication or the way I have represented you to date, please notify me by certified mail at the address set forth herein immediately. If I do not hear from you, it shall be an acknowledgment by you per our agreement that you are satisfied with my representation of you to date and you agree with my statements in this communication.

The intended effect of this "message "is to create a short period of time within which the client must decide whether he or she is satisfied with the representation, and if not satisfied, the client must notify the lawyer "immediately."If such notification is not provided "immediately,"the client will have acknowledged an "agreement "that the client is satisfied with the representation.

It is apparent from reviewing this "message "that the lawyer is attempting to exonerate himself or herself from any claim of malpractice or to cause a waiver of any claim for malpractice by the client against the lawyer. By attempting to limit his or her liability for malpractice or to cause a waiver of any claim for malpractice, the lawyer is putting himself or herself into an adversarial relationship with the client. While providing advice to the client on the one hand, the lawyer is attempting to limit or excuse his or her liability for claims of malpractice resulting from the provision of such advice on the other hand. Such conduct places the lawyer's personal interests ahead of the interests of the client. This conduct is expressly forbidden by Rule 1.8(h), which provides that "A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement."

In summary, the use of a message or notice, such as described herein, is a violation of Rule 1.8(h), and subjects an attorney to discipline, for which the maximum penalty is a public reprimand.