St. Denis & Davey, P.A.

Legal Malpractice Issues

Lawmakers in one state advancing anti-indemnification measure for attorneys

| Mar 17, 2017 | Professional Malpractice Law |

From accountants to physicians, most people correctly assume that they’ll be able to pursue legal action against any professional in the event the services they provide result in monetary damages or physical harm.

Indeed, the laws in most states dictate that this must be the case, as to hold otherwise would be contrary to public policy. For instance, physicians are generally prohibited from inserting language into their contracts dictating that they cannot be sued for medical malpractice.

Interestingly enough, there are scenarios in which a professional could theoretically insert language into their contract for services dictating that they cannot be sued for misconduct or mismanagement owing to the dearth of laws covering their particular field.

Consider the situation in the state of Indiana, where the state Senate recently passed Senate Bill 84, an attorney anti-indemnification measure, by a margin of 45-3.

The legislation, sponsored by Sen. Liz Brown (R-Fort Wayne), states that any agreement attempting “to prospectively release the attorney from liability for malpractice is against public policy, void and unenforceable.”

SB 84 has earned somewhat mixed reviews among the legal community in the Hoosier State, with many attorneys questioning the need for it given the existence of Indiana Rule of Professional Conduct 1.8 and the accompanying rarity of such contractual provisions.

For reference, Rule 1.8 states, in part, “agreements prospectively limiting a lawyer’s liability for malpractice are prohibited unless the client is independently represented in making the agreement.”         

Concerns have also been voiced that the measure would represent an unnecessary intrusion into the powers delegated to the judicial branch, namely the Indiana Supreme Court’s power to regulate attorney conduct.

Lastly, there are questions about whether it could someday be expanded to include arbitration requirements, which could theoretically be viewed as prospectively limiting liability given the client’s waiver of the right to a jury trial, right to appeal the decision and, of course, right to punitive damages.

The measure now moves to the state House of Representatives. Stay tuned for updates …

Please consider speaking with a skilled legal professional if you have serious concerns relating to the services provided by your attorney here in Florida.