Does a lawyer violate the rule against limiting malpractice liability by denying that he made an error and refusing to correct it?

Plain-English summary

The Commission was asked whether an attorney violates Maine Bar Rule 3.6(b) by refusing to acknowledge and correct an error in the distribution of real estate during the settlement of a probate estate. The attorney maintained that no error was made, but for purposes of the response the Commission assumed he was wrong.

The Commission concluded that Rule 3.6(b) is not violated when an attorney takes the position that he has not been guilty of a professional error, negligence, or misconduct. Rule 3.6(b) bars a lawyer from attempting to exonerate himself from, or limit, his liability to a client for his own malpractice or that of his partners or salaried employees, but provides that the rule does not prevent a lawyer from settling or defending a malpractice claim.

Without detailing every circumstance in which the rule applies, the Commission identified its principal target as an attempt to limit liability prospectively, as would occur if a lawyer incorporated such a limitation in a retainer agreement. Because the rule expressly permits defense and settlement of a malpractice claim, and defense necessarily implies the right to deny that malpractice occurred and to maintain that the lawyer's actions were legally correct, even if the error seems obvious to others, the attorney's refusal to acknowledge the claimed error did not violate Rule 3.6(b).

Currency note

This opinion was issued in 1980, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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: Does denying you committed malpractice violate the rule against limiting liability?

A: The opinion concluded no. Rule 3.6(b) is not violated when a lawyer takes the position that he committed no professional error, negligence, or misconduct.

Q: What does Rule 3.6(b) actually target?

A: The opinion concluded its principal target is a prospective limitation of malpractice liability, such as a limitation inserted in a retainer agreement.

Q: Can a lawyer defend against a malpractice claim?

A: The opinion concluded yes. The rule expressly permits settling or defending a malpractice claim, and defending necessarily includes the right to deny that malpractice occurred.

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(b), which bars a lawyer from attempting to exonerate or limit his liability to a client for malpractice while expressly allowing him to settle or defend a malpractice claim. It corresponds to Model Rule 1.8(h) (limiting liability to a client for malpractice). The analysis turns on the distinction between a prospective limitation of liability, which the rule forbids, and defending a malpractice claim, which the rule allows.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8(h) (limiting malpractice liability to a client)
• Maine Bar Rule 3.6(b)

See also

• Maine Ethics Op. 26: Limitation of Liability in a Title Opinion
• Maine Ethics Op. 170: An Agreement to Arbitrate Future Malpractice Claims

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89452

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 2, 1980

Question

The Commission has been asked whether an attorney violates Maine Bar Rule 3.6(b) in refusing to acknowledge and correct an error in the distribution of real estate during the settlement of a probate estate. The attorney maintains that no error was made, but for purposes of this response the Commission will assume he is wrong.

Opinion

The Commission concludes that Rule 3.6(b) is not violated when an attorney takes the position that he has not been guilty of a professional error, or of professional negligence or misconduct. Rule 3.6(b) provides:

Limiting liability. A lawyer shall not attempt to exonerate himself from, or limit, his liability to his client for his personal malpractice or that of his partners or salaried employees. This rule shall not prevent a lawyer from settling or defending a malpractice claim.

Without attempting to detail all circumstances in which the rule applies, we believe its principal target is an attempt to limit liability prospectively as would occur, for example, if the lawyer incorporated such a limitation in a retainer agreement.

The rule expressly permits defense and settlement of a claim of malpractice. Defense necessarily implies a right to deny that malpractice has occurred, and a right to maintain that actions of the lawyer were legally correct, even if it seems obvious to others that he erred.