Can an in-house lawyer get an indemnity agreement from the corporate employer covering legal malpractice?

Plain-English summary

The committee considered whether an attorney employed by a corporation may solicit an indemnification agreement from the corporate employer. It opined that it is not proper for an attorney to solicit indemnification from a corporate employer that limits the liability of the attorney's own legal malpractice. It opined that it is not improper for an attorney to solicit indemnification from a corporate employer for malpractice resulting from the attorney rendering advice to third parties at the corporate employer's request, provided the attorney does not limit his liability and is, in fact, liable for malpractice, citing DR 6-102 and DR 5-106(B). The committee note records that current Rule 1.8(h) permits such indemnity agreements if the corporation is separately represented.

Currency note

This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note describes the current rule on limiting liability, Rule 1.8(h). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can an in-house lawyer accept an indemnity that limits liability for the lawyer's own malpractice?

A: Under this 1987 opinion, no. The committee opined it was improper to solicit indemnification from a corporate employer that limits liability for the attorney's own legal malpractice.

Q: Is any indemnity from the employer permissible?

A: The committee opined that indemnity for malpractice arising from advising third parties at the employer's request is not improper, provided the attorney does not limit liability and remains liable for malpractice.

Background and rules framework

The opinion interpreted former Virginia DR 6-102 (a lawyer's attempt to limit liability to a client for personal malpractice) and DR 5-106(B). These correspond to the limiting-liability framework now in ABA Model Rule 1.8(h). The committee note maps the question onto current Virginia Rule 1.8(h).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 6-102 (limiting liability for malpractice)
• Former Virginia DR 5-106(B)
• Virginia Rule 1.8(h) / ABA Model Rule 1.8(h) (limiting liability; indemnity if separately represented)

See also

• VA LEO 983: A Former In-House Lawyer and a False Prospectus
• VA LEO 1083: Law Firm Ownership of a Nonlegal-Services Subsidiary

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0877.pdf

Original opinion text

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

Committee Opinion
April 1, 1987
LEGAL ETHICS OPINION 877

CORPORATION – ATTORNEY AS
EMPLOYEE.

It is not proper for an attorney to solicit indemnification from a corporate employer
which limits the liability of the attorney's own legal malpractice. It is not improper for an
attorney to solicit indemnification from a corporate employer for malpractice resulting
from the attorney rendering advice to third parties at the corporate employer's request
provided the attorney does not limit his liability and is, in fact, liable for malpractice.
[DR:6-102, DR:5-106(B)]

Committee Opinion
April 1, 1987

Legal Ethics Committee Notes. – Rule 1.8(h) permits such indemnity agreements if
the corporation is separately represented.