Question

I have been contacted by a former client who claims that I committed malpractice when representing her. She is asking to meet with me to discuss the settlement of her claim. Should I do that?

Answer

It is not unusual for lawyers to receive a complaint from a client about a claim for malpractice. All lawyers work very hard to provide competent representation to their clients but sometimes the client believes that something should have been done differently or that the lawyer did not adequately represent the client in the matter. Whether to talk with a former client is a judgment call that requires the lawyer to assess whether the meeting will be helpful or might actually aggravate the situation. The lawyer may want to consider having another lawyer meet with the client to discuss this matter.

There are some requirements in the Rules of Professional Conduct that must be considered. SCR 20:1.8(h) addresses this situation and provides some guidance. The most well-known requirement of SCR 20:1.8(h) is paragraph (3), which prohibits a lawyer from entering into any type of agreement that limits the right of a person to report the lawyer’s conduct to disciplinary authorities such as the Office of Lawyer Regulation (OLR). There are various public-policy considerations behind this part of the Rule, and lawyers must be careful to avoid any type of agreement or even discussion about prohibiting or preventing the former client from filing a grievance with the OLR. Any such agreement would be void as against public policy and represent a clear violation of the Supreme Court Rules.

There is also a provision in SCR 20:1.8(h) that prevents a lawyer from entering into an agreement with a former client that limits the lawyer’s malpractice liability unless the former client has independent representation. The language of SCR 20:1.8(h)(1) is very clear:

“(h) A lawyer shall not:

“(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement;…”

Because of this language, it is risky for a lawyer to meet with a former client who comes to the meeting without legal counsel. For any agreement to be valid, and to avoid a complaint for violating this part of the supreme court rule, there would have to be involvement of a lawyer representing the former client. This provision relates to a prospective claim against the attorney, which envisions some type of an agreement being reached before the lawyer provides or completes the representation of the client.

Another provision of SCR 20:1.8(h) speaks directly to the situation you have described: that is, a situation in which the lawyer is being asked to meet with the former client to talk about possibly settling a claim for damages by the former client. The language of SCR 20:1.8(h)(2) provides as follows:

“(h) A lawyer shall not:

…

“(2) settle a claim or potential claim for such liability [author’s note: meaning liability for malpractice] with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith;…”

Obviously, this language is very clear in its requirement that the lawyer must advise the unrepresented former client of the desirability of seeking and being given an opportunity to seek the advice of another attorney before meeting with the lawyer to discuss the possibility of settling the dispute over alleged malpractice negligence. It is vital that the lawyer communicate in writing that the former client should seek the advice of separate, independent counsel before meeting with the lawyer to discuss possible settlement.

Whenever lawyers deal with claims for malpractice against themselves, special caution must be exercised to comply with these requirements under the Rules of Professional Conduct.

Lawyers must be careful to avoid any type of agreement or even discussion about prohibiting or preventing the former client from filing a grievance with the OLR.

» Cite this article: 95 Wis. Law. 39-40 (March 2022).