Ethics Question of the Week: Can I settle a malpractice claim directly with client?
Q. I committed legal malpractice in a small dollar case. Can I settle my client’s claim against me directly with the client?
A. Comment [15] to Rule 1.8 explains that such settlement agreements are not prohibited. However, Rule 1.8(h)(2) expressly provides that a lawyer cannot settle a malpractice claim (or potential claim) by a former or unrepresented client unless the client is advised in writing of the desirability of seeking the advice of independent legal counsel and is given a reasonable opportunity to do so.
ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.
[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]
Member Comments (1)
You would still be obligated to notify your legal malpractice insurance carrier (and you better have one). Of course if a malpractice case is settled in the middle of the woods, does the carrier hear it? That's too big of a risk so it's best to disclose the claim or potential claim to them.