If Liability Is Limited, Written Notice to Your Client to Seek Independent Counsel Is Needed
I have an active criminal defense practice and have a very good plea agreement for my client, but he has to waive any rights to appeal and any rights to claim my ineffectiveness. Can I allow that to happen?
August 17, 2017 at 04:36 PM
10 minute read
If liability is limited, written notice to your client to seek independent counsel is needed.
I have an active criminal defense practice and have a very good plea agreement for my client, but he has to waive any rights to appeal and any rights to claim my ineffectiveness. Can I allow that to happen?
The question is an interesting one. The pertinent rule, which has been discussed recently in an earlier article, is Pennsylvania Rule of Professional Conduct 1.8(h). That precludes a lawyer from making an agreement limiting the lawyer's liability to the client for malpractice unless the client is independently represented in making the agreement. The rule also precludes settling a claim for liability with a client in a legal malpractice case without giving the client written notice that they should seek independent counsel.
The question becomes is a waiver of the claim of ineffective assistance of counsel the same as signing a release in reference to a professional liability case? The question is really an interesting one. As criminal lawyers know, bringing a legal malpractice suit against a criminal lawyer for his criminal representation of a client, there first has to be a finding of ineffective assistance of counsel or else normally the legal malpractice suit will be dismissed. As a result, there is a close connection between a claim for ineffective assistance of counsel and the ability of a client to sue their criminal defense lawyer for legal malpractice.
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