Can a lawyer ask the client to indemnify the lawyer against claims by a non-client who receives the lawyer's opinion letter?
NY State Bar Ethics Opinion 969: Client indemnity for third-party opinion-letter claims
Short answer: A lawyer may ask a client to indemnify the lawyer against malpractice or other claims brought by a non-client third party who is an addressee of the lawyer's opinion letter, because Rule 1.8(h)'s prohibition on prospectively limiting malpractice liability runs only to the lawyer's own client.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A client asked the lawyer to address an opinion letter not only to the client but also to the client's lessee. The lawyer asked whether he could prospectively require the client to indemnify him against a lawsuit brought by that third-party lessee (¶¶ 1-2).
The opinion starts with Rule 1.8(h)(1), which bars a lawyer from making an agreement prospectively limiting the lawyer's liability to a client for malpractice; Comment [14] explains the bar exists because such agreements are likely to undermine competent and diligent representation. So the lawyer could not have the client indemnify him against the client's own malpractice claims (¶ 3).
The committee then distinguishes the situation at hand. The indemnity sought is against claims by a non-client, the lessee who is a third-party addressee. The Rules contemplate that a lawyer may, at the client's request, provide an evaluation for a third party's use under Rule 2.3(a), and whether the lawyer owes that third party a legal duty is a question of law the committee does not resolve. Either way, absent other facts, the third-party addressee is not the lawyer's client (¶ 4).
Because Rule 1.8(h) applies only to prospective agreements limiting liability to the lawyer's client, the committee concludes a lawyer may prospectively obtain the client's indemnity against potential malpractice or other claims a third party could assert (¶ 5). It adds that the harm Comment [14] guards against does not arise here: indemnity against third-party claims is unlikely to undermine the representation of the client, since the lawyer still cannot limit malpractice liability to the client himself (¶ 6).
In practice
Under this opinion, as the rules stood at the time, the dividing line is who holds the claim. The opinion holds Rule 1.8(h) forbids a prospective agreement shifting the client's own malpractice claims back to the client, but it does not reach indemnity for claims brought by a non-client third party who receives the opinion letter (¶¶ 3-5).
Per the opinion, a lawyer issuing an opinion letter addressed to a third party at the client's request (Rule 2.3(a)) may ask the client to indemnify against that third party's malpractice or other claims. The committee did not decide whether the lawyer owes the third-party addressee any legal duty, treating that as a question of law (¶ 4).
Common questions
Q: Can a lawyer make the client indemnify the lawyer against the client's own malpractice claims?
A: No. The opinion holds Rule 1.8(h)(1) bars any agreement prospectively limiting the lawyer's malpractice liability to the client, including indemnity against the client's own claims (¶ 3).
Q: Can a lawyer ask the client to indemnify against a third party's claims on an opinion letter?
A: Yes. The opinion concludes Rule 1.8(h) protects only the client, so indemnity against malpractice or other claims by a non-client third-party addressee is permissible (¶ 5).
Q: Does the lawyer owe a legal duty to the third party who receives the opinion letter?
A: The committee does not decide. It notes under Rule 2.3 a duty "may or may not arise" and that this is a question of law; absent other facts, the third party is not the lawyer's client (¶ 4).
Background and rules framework
The opinion interprets Rule 1.8(h)(1) (analogous to Model Rule 1.8(h)), which prohibits prospectively limiting a lawyer's malpractice liability to a client, read with Comment [14]'s rationale. It applies Rule 2.3(a) (Model Rule 2.3), under which a lawyer may, at the client's request and if compatible with the representation, provide an evaluation for a third party's use.
The committee draws support from the ABA Business Law Section task force report on document-review reports and a Michigan opinion, both recognizing that the bar on limiting liability does not extend to non-clients.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.8 / NY Rule 1.8(h) (no prospective limit on malpractice liability to a client)
- Model Rule 2.3 / NY Rule 2.3(a) (evaluation for use by a third party)
Cases:
- Prudential Ins. Co. of America v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377 (1992), duty to a third party on a lawyer's opinion
Other opinions cited:
- ABA Business Law Section Task Force report, 67 Bus. Law. 99 (2011): liability-limit bars do not apply to non-clients
- Michigan Opinion RI-258 (1996): guardian ad litem may seek release from non-client interested persons
See also
- NY State Bar Op. 1092: Duty to disclose co-counsel's malpractice
- NY State Bar Op. 1125: No duty to respond to a third party's query
Source
- Landing page: https://nysba.org/ethics-opinion-969/