Can a Pennsylvania lawyer ask a client to sign a COVID-19 liability waiver?

Plain-English summary

A COVID waiver, as the opinion defines it, is a contractual provision by which one party gives up the right to compensation for injuries resulting from exposure to the COVID-19 virus. The Committee was asked whether a lawyer who asks a client to sign such a waiver raises any ethical issues. The opinion concludes that the lawyer must obtain the client's informed consent consistent with Rule 1.7(b).

The opinion identifies three potentially applicable rules. Rule 1.7(a)(2) bars representation if there is a significant risk that it will be materially limited by the lawyer's personal interest; here, the opinion finds the lawyer's interest in obtaining the waiver is "directly contrary to the client's interest in giving one." A lawyer therefore may not seek the waiver unless the conditions of Rule 1.7(b) are met, including the client's informed consent after the lawyer communicates adequate information about the material risks and reasonably available alternatives.

The opinion then addresses Rule 1.8(a), which governs business transactions with a client. The opinion expresses no view on whether seeking a COVID waiver is a "business transaction" under the rule, but states it "would be prudent practice to follow the dictates of Rule 1.8(a)," meaning the transaction must be fair and reasonable and fully disclosed in writing, the client must be advised in writing to seek independent counsel and given a reasonable opportunity to do so, and the client must give informed written consent. The opinion concludes Rule 1.8(h)(1), which limits prospective malpractice liability waivers, does not apply because liability for COVID exposure is not malpractice. In a footnote, the opinion notes that where the waiver is sought from a prospective rather than current client, Rule 4.3(a) and (b) would apply, requiring the lawyer to advise that unrepresented person to obtain independent counsel. The opinion expressly does not address whether COVID waivers are enforceable, calling enforceability a non-ethics question.

In practice

Under this opinion, a Pennsylvania lawyer who wants a client to sign a COVID-19 liability waiver must treat it as a personal-interest conflict under Rule 1.7(a)(2) and obtain the client's informed consent under Rule 1.7(b). The opinion concludes it would be prudent to also follow Rule 1.8(a)'s business-transaction protections (writing, advice to seek independent counsel, informed written consent). Where the person asked is a prospective client rather than a current one, the opinion concludes Rule 4.3 requires advising that person to obtain independent counsel.

Common questions

Q: Why is asking a client for a COVID waiver a conflict?

A: Because of the lawyer's personal interest. The opinion concludes the lawyer's interest in obtaining the waiver is directly contrary to the client's interest in giving one, implicating Rule 1.7(a)(2).

Q: What do I need to do before asking for the waiver?

A: Obtain informed consent under Rule 1.7(b). The opinion concludes the lawyer must communicate adequate information about the material risks and reasonably available alternatives, and the opinion advises following Rule 1.8(a)'s business-transaction safeguards as well.

Q: Does the malpractice-waiver rule (1.8(h)) apply?

A: No. The opinion concludes Rule 1.8(h)(1) does not apply because liability for COVID exposure would not be malpractice.

Background and rules framework

The opinion interprets Pennsylvania Rules of Professional Conduct 1.7 (conflicts of interest, including the personal-interest limitation in 1.7(a)(2) and the informed-consent conditions in 1.7(b)), 1.8(a) (business transactions with a client), and 1.8(h)(1) (prospective limits on malpractice liability), and references Rule 4.3 (dealings with unrepresented persons) for the prospective-client situation. These track the ABA Model Rules of the same numbers.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 1.7, including 1.7(a)(2) and 1.7(b); ABA Model Rule 1.7
• Pa.R.P.C. 1.8(a), 1.8(h)(1); ABA Model Rule 1.8
• Pa.R.P.C. 4.3(a), 4.3(b); ABA Model Rule 4.3

See also

• PA Bar Ethics Op. 2020-400: Endorsement of D.C. Bar Opinion 377, Duties When a Lawyer Is Impaired
• CA COPRAC Op. 2009-178: Fee Settlement, General Release and Section 1542 Waiver

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: f2020-600.pdf