This section briefly examines three principal defenses to a legal malpractice claim: (1) negating the elements of a claim; (2) contributory fault; and (3) the statute of limitations.
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| Note: | As noted earlier Washington has abandoned the "independent business judgment rule." See Nielson v. Eisenhower & Carlson, 100 Wn. App. 584, 590-91, 999 P.2d 42, review denied, 141 Wn.2d 1016 (2000). Therefore, a client's settlement of an underlying matter no longer precludes a subsequent malpractice claim. Id. Similarly, judicial approval of a settlement or withdrawal does not necessarily bar a subsequent malpractice claim relating, respectively, to the settlement or the withdrawal under the doctrine of collateral estoppel. See Barr v. Day, 124 Wn.2d 318, 324-26, 879 P.2d 912 (1994) (settlement); Schibel v Eymann, 193 Wn. App. 534, 372 P.3d 172, review granted, 186 Wn.2d 1009 (2016) (withdrawal). In a similar vein, collateral estoppel does not bar a trial court in a subsequent legal malpractice case from revisiting court decisions from an earlier case that provide the factual context for the malpractice claim. See Paradise Orchards Gen. P'ship v Fearing, 122 Wn. App. 507, 513-16, 94 P.3d 372 (2004), review denied, 153 Wn.2d 1027 (2005). |
RPC 1.8(h)(1) prohibits lawyer-client agreements "prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement[.]" The RPCs include a Washington-specific comment, RPC 1.8 cmt. 14, reiterating this point. See also In re Disciplinary Proceeding Against Perez-Pena, 161 Wn.2d 820, 827 n.2, 168 P.3d 408 (2007) (discussing RPC 1.8(h)(1) in the disciplinary context). As of this writing, there is no statutory, regulatory, or case law authorizing or expressly permitting such agreements in Washington.
RPC 1.8(h)(2), in turn, prohibits lawyers from settling "a claim or potential claim for such liability 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 an independent lawyer in connection therewith." The Supreme Court concluded in In re Disciplinary Proceeding Against Greenlee, 158 Wn.2d 259, 143 P.3d 807 (2006), that former RPC 1.8(h), which was substantively similar to the current version but did not specifically include...
