MBE Rules · Professional Responsibility
Limiting Malpractice Liability
Cal. Rule 1.8.8
The rule
A lawyer may not prospectively limit malpractice liability to a client at all in California (stricter than the ABA), and may settle an existing malpractice claim only after advising the unrepresented client in writing to seek independent counsel.
In plain English
In California, lawyers cannot limit their liability for malpractice in advance, meaning they can't ask clients to agree to limit their rights to sue for negligence or misconduct. If a lawyer wants to settle a malpractice claim, they must first inform the client in writing that they should seek independent legal advice before agreeing to the settlement.
Worked example
A lawyer in California includes a clause in their retainer agreement that limits their liability for malpractice. Later, the client discovers the lawyer made a significant error and wants to sue. The clause is unenforceable, and the client can proceed with their malpractice claim against the lawyer.
Memory hook
No preemptive liability caps in California—lawyers must own their mistakes.
The trap
Exams may present scenarios where students misinterpret the ability to limit liability, thinking it’s permissible under certain conditions when it is not.
How examiners test it
Questions often involve fact patterns where a lawyer attempts to limit liability or settle a claim without proper advisement, testing the candidate's understanding of the strict California rules.
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More Professional Responsibility rules
- Duty of Confidentiality · Cal. Bus. & Prof. Code § 6068(e); Rule 1.6
- Client Trust Account — IOLTA · Cal. Rules of Prof. Conduct 1.15
- Duty to Report Misconduct · Cal. Rules of Prof. Conduct 8.3
- Unconscionable Fees · Cal. Rule 1.5
- Fee Division Among Lawyers · Cal. Rule 1.5.1
- Compensation from Third Parties · Cal. Rule 1.8.6