Opinion #9. Limiting Liability
Issued by the Professional Ethics Commission
Date Issued: April 2, 1980
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.
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.