Ezel / Ethics Opinions / OSB
OSB August 2005

After a lawyer misses a filing deadline, can the lawyer settle the malpractice exposure with the client and keep handling the client's other claim?

Short answer: Yes to both, qualified. The opinion concludes a lawyer may settle a potential malpractice claim with the client only after advising the client in writing to seek independent counsel, and may keep handling the timely-filed claim unless the malpractice exposure materially limits the representation, which requires the client's written informed consent.

Apply this to your situation

This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer is retained to assert two factually and legally separate claims against two separate individuals. The lawyer timely files a complaint on one claim but fails to do so on the other. The opinion asks whether the lawyer may negotiate a settlement with the client for the missed filing, and whether, absent such a settlement, the lawyer may continue to handle the claim that was timely filed.

On settlement, the opinion applies Oregon RPC 1.8(h), which bars a lawyer from prospectively limiting malpractice liability to a client who is not independently represented, and from settling a claim or potential claim with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking independent legal counsel and given a reasonable opportunity to do so. The opinion concludes the lawyer may ethically settle with the client if the lawyer first advises the client in writing that independent representation is desirable in connection with any proposed settlement.

On continued representation, the opinion applies Oregon RPC 1.7(a)(2). It concludes that, depending on the facts, the pendency or potential pendency of a malpractice claim against the lawyer could create a significant risk that the representation is materially limited by the lawyer's personal interest, contrasting In re Knappenberger with In re Lawrence. If RPC 1.7(a)(2) applies, the opinion concludes the lawyer may not represent the client on the timely-filed claim unless the lawyer obtains the client's informed consent, confirmed in writing.

In practice

The opinion holds that, under the Oregon rules as they stood at the time of the opinion, a lawyer's own error creates two separate requirements: a settlement of the malpractice exposure is valid only with the written advice-to-seek-counsel step of RPC 1.8(h), and continued work on the related matter is permissible only if the lawyer's personal interest does not materially limit the representation under RPC 1.7(a)(2), with written informed consent required where it does. Verify the current text of Oregon RPC 1.8 and RPC 1.7 before relying on any specific step.

Common questions

Q: I missed a deadline on one of my client's claims. Can I settle that with the client directly?

A: Yes, qualified. The opinion concludes a lawyer may settle a potential malpractice claim with the client under RPC 1.8(h) only after advising the client in writing of the desirability of seeking independent counsel.

Q: Can I keep handling the client's other claim after the missed deadline?

A: Yes, qualified. The opinion concludes the lawyer may continue unless the malpractice exposure materially limits the representation under RPC 1.7(a)(2), in which case the client's written informed consent is required.

Q: When does my own potential malpractice become a conflict?

A: The opinion concludes it depends on the facts: a malpractice claim against the lawyer can trigger RPC 1.7(a)(2) where there is a significant risk the representation will be materially limited by the lawyer's personal interest.

Background and rules framework

The opinion interprets Oregon RPC 1.8(h) (limiting liability and settling malpractice claims) and RPC 1.7(a)(2) (material-limitation conflicts from a personal interest), with RPC 1.0(g) (informed consent). These correspond to Model Rules 1.8, 1.7, and 1.0.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.8(h) / Model Rule 1.8 (limiting liability; settling malpractice claims)
  • Oregon RPC 1.7(a)(2), 1.7(b) / Model Rule 1.7 (material-limitation conflicts; consent)
  • Oregon RPC 1.0(g) / Model Rule 1.0 (informed consent)

Cases:

  • In re Knappenberger, 337 Or 15, 90 P3d 614 (2004)
  • In re Lawrence, 332 Or 502, 31 P3d 1078 (2001)
  • In re Smith, 9 DB Rptr 79 (1995)

See also

Source

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