My client claims my firm missed a filing deadline and wants to settle the malpractice claim for money plus finishing the other case for free. Can we accept that settlement under the ethics rules?

Plain-English summary

The inquiring attorney's firm represents a client in an ongoing state tort suit and separately agreed to represent the client, as trustee, in an unrelated federal compensation matter. The client alleges the firm failed to timely file the federal claim, causing it to be barred. After consulting outside counsel, the client proposed to settle the malpractice claim for a sum of money plus the firm's agreement to complete the remaining state court suit free of charge. The firm wants to accept and asked whether the settlement comports with the Rules of Professional Conduct.

The panel concluded it does. The facts implicate Rule 1.8(h), which bars a lawyer from prospectively limiting malpractice liability to a client without independent representation, and from settling a malpractice claim or potential claim with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking independent counsel and given a reasonable opportunity to do so. Comment [15] confirms that agreements settling a malpractice claim are not prohibited, but are permitted only when the lawyer first advises the client in writing of the appropriateness of independent representation and gives a reasonable opportunity to consult independent counsel, to avoid the danger that a lawyer will take unfair advantage of an unrepresented client.

Because the client made the proposed settlement only after consulting outside counsel, the panel concluded the agreement comports with Rule 1.8(h)(2), comparing Oregon Ethics Op. 2005-61, which reached the same result for a lawyer who failed to timely file a client's claim and could settle if the lawyer first advised the client in writing that independent representation was desirable.

In practice

Under this opinion, a Rhode Island lawyer or firm may settle a client's malpractice claim, including for money plus continued free legal work, so long as Rule 1.8(h)(2) is satisfied: the client must be advised in writing of the desirability of independent counsel and given a reasonable opportunity to seek it. The panel found the requirement met where the client proposed the settlement after consulting outside counsel, so the settlement comported with the Rules.

Common questions

Q: Can I settle a malpractice claim directly with my own client?

A: The panel said yes, provided Rule 1.8(h)(2) is met. Settling malpractice claims is not prohibited, but the client must be advised in writing of the desirability of independent counsel and given a reasonable opportunity to seek it.

Q: Does the client already having independent counsel satisfy the rule?

A: On these facts, yes. The panel concluded the settlement comported with Rule 1.8(h)(2) because the client proposed it only after consulting outside counsel.

Q: Can the settlement include free legal work rather than only money?

A: The panel treated the proposed settlement (a sum of money plus completing the state suit free of charge) as comporting with Rule 1.8(h) on these facts, focusing on the independent-counsel requirement rather than the form of consideration.

Background and rules framework

The opinion applies Rule 1.8(h) (Model Rule 1.8, conflicts of interest; specific rules), which governs agreements limiting malpractice liability and settlements of malpractice claims with clients. Rule 1.8(h)(2) permits settling a claim or potential claim with an unrepresented client or former client only if the person is advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, independent legal counsel. Comment [15] explains the rule guards against a lawyer taking unfair advantage of an unrepresented client.

Citations and references

Rules of Professional Conduct:

• MR 1.8 (conflicts of interest; specific rules; malpractice settlements under 1.8(h))
• RI RPC 1.8

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• Oregon Ethics Op. 2005-61 (a lawyer who missed a filing deadline may settle with the client if the lawyer first advises the client in writing that independent representation is desirable, under Oregon Rule 1.8(h))

See also

• OR Ethics Op. 2005-61: Malpractice Settlement With a Client
• RI EAP Op. 2025-12: A Bare Malpractice Claim Does Not Create a Conflict
• ABA Formal Op. 02-425: Arbitration of Fee Disputes and Malpractice Claims

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2025-11.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2025-11
Issued October 9, 2025

FACTS

The inquiring attorney's firm represents a client in an ongoing state tort suit. Concurrently, the firm agreed to represent the client, as trustee, in an unrelated federal compensation matter. The client alleges that the firm failed to timely file his or her claim in the federal matter, thereby causing it to be barred.

After consultation with outside counsel, the client proposes to settle his or her malpractice claim for a certain sum of money and the firm's agreement to handle the remainder of the state court suit free of charge. The firm wishes to accept this proposed settlement agreement but wonders whether it comports with the Rules of Professional Conduct.

ISSUE PRESENTED

The inquiring attorney asks whether the proposed settlement agreement comports with the Rules of Professional Conduct?

OPINION

It is the Panel's opinion that the proposed settlement agreement comports with the Rules of Professional Conduct.

REASONING

The facts as described by the inquiring attorney implicate Rule 1.8(h):

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

This rule makes clear that "[a]greements settling a claim or a potential claim for malpractice are not prohibited" under the Rules of Professional Conduct. Rule 1.8, Comment [15]. It is equally clear, however, that such agreements are not permitted unless "the lawyer . . . first advise[s the client] in writing of the appropriateness of independent representation in connection with such a settlement" and "give[s] the client . . . a reasonable opportunity to find and consult independent counsel." Id. This is to avoid "the danger that a lawyer will take unfair advantage of an unrepresented client or former client" in such a scenario. Id.

In this case, the inquiring attorney affirmatively states that the client made the proposed settlement agreement to the inquiring attorney's firm only after consultation with outside counsel. Accordingly, the Panel concludes that the proposed settlement agreement comports with Rule 1.8(h)(2). See Oregon Ethics Op. 2005-61 (determining that an attorney who failed to timely file a claim on behalf of a client may "ethically effect a settlement with Client if Lawyer first advises Client 'in writing' that independent representation for Client is desirable in connection with any proposed settlement" pursuant to Oregon's Rule 1.8(h)).