Can in-house counsel in Washington enter an agreement prospectively limiting their malpractice liability to the employer-client?

Plain-English summary

The inquiry concerned professional risk management when acting as house counsel. The committee stated that the Rules of Professional Conduct, and specifically RPC 1.8(h), apply to in-house counsel practicing in Washington under Admission to Practice Rule 8(f). It said the existence of an attorney-client relationship in this context had been addressed in the committee's earlier letter, and that the relationship exists notwithstanding any separate definition given the words "a matter" in RPC 1.8(h).

The committee concluded that the form of prospective liability-limitation agreement addressed in RPC 1.8(h) is prohibited in Washington state unless specifically permitted outside the RPC by Washington state law, and that it knew of no case or other law in Washington that specifically permits such an agreement.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. RPC 1.8 was restructured in that revision. 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 Treat this page as historical context, not current guidance.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 RPC 1.8(h) apply to in-house counsel in Washington?

A: Yes. The committee said the Rules of Professional Conduct, and specifically RPC 1.8(h), apply to in-house counsel practicing under Admission to Practice Rule 8(f), and that an attorney-client relationship exists in that context.

Q: Can in-house counsel agree in advance to limit their malpractice liability to the employer?

A: No. The committee said the prospective liability-limitation agreement RPC 1.8(h) addresses is prohibited in Washington unless specifically permitted outside the RPC by Washington law, and it knew of no such law.

Background and rules framework

The opinion interprets Washington RPC 1.8(h) (corresponding to Model Rule 1.8(h)), which restricts a lawyer's prospective limitation of malpractice liability to a client, and applies it to in-house counsel admitted under Admission to Practice Rule 8(f). The committee treated the in-house relationship as a genuine attorney-client relationship to which the rule's prohibition fully applies.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Washington RPC 1.8(h) (prospective limitation of malpractice liability to a client)

Other authority:

• Washington Admission to Practice Rule 8(f) (in-house counsel practice), cited as the basis for the in-house lawyer's practice

See also

• WSBA Ethics Op. 1004: Prospective Limitation on Malpractice
• WSBA Ethics Op. 1925: Third-Party-Paid Defense of Pool Members
• WSBA Ethics Op. 1055: Duties of an Agency Staff Lawyer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1176

Original opinion text

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

Advisory Opinion: 1936
Year Issued: 2000
RPC(s): RPC 1.8(h); 8(f)
Subject: Professional risk management when acting as house counsel

[Editor's Note; Ethics inquiry #1936 concerns professional risk management when acting as house counsel.]

The Committee has reviewed your inquiry and determined the following:

The Rules of Professional Conduct and specifically RPC 1.8(h) are applicable to in-house counsel practicing in Washington under Admission to Practice Rule 8(f). The existence of an attorney client relationship in this context was specifically addressed in the committee’s earlier letter. This relationship exists, notwithstanding any separate definition given the words "a matter" in RPC 1.8(h).

The form of prospective liability limitation agreement addressed in RPC 1.8(h) is prohibited in Washington state, unless specifically permitted outside the RPC by Washington state law. The committee knows of no case or other law in Washington State that specifically permits such an agreement.