A Cloak for the Bare: In Support of Allowing Prospective Malpractice Liability Waivers in Certain Pro Bono Cases

Abstract

Both the American Bar Association (ABA) Model Code of Professional Responsibility and the ABA Model Rules of Professional Conduct, as well as mainstream authorities regarding legal ethics, have been resolute in their opposition to allowing clients to waive, prospectively, liability on the part of their attorneys for legal malpractice.

This article argues, however, that there is little historical basis for this ban on prospective liability waivers, and that the arguments against allowing such waivers turn out, on further examination, to be surprisingly weak. Moreover, the arguments against allowing such waivers are particularly weak in the context of the direct provision of pro bono legal services to poor clients. The article contends that there is a need to increase the amount of such pro bono legal services provided, and that allowing prospective malpractice liability waivers in such cases would contribute to such an increase. Therefore, prospective malpractice liability waivers should be allowed in pro bono cases where legal services are provided directly to poor clients.

Keywords: legal malpractice, malpractice liability, waivers of malpractice liability, pro bono representation, legal ethics, poor clients, low-income clients

JEL Classification: K40, K49