Rule 1.8 (h) of the Georgia Rules of Professional Conduct for lawyers provides that “a lawyer shall not make an agreement 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.”
This rule from the Supreme Court of Georgia is followed by this official comment: “A lawyer should not seek prospectively, by contract or other means, to limit the lawyer’s individual liability to a client for the lawyer’s malpractice. A lawyer who handles the affairs of a client properly has no need to attempt to limit liability for the lawyer’s professional activities and one who does not handle the affairs of clients properly should not be permitted to do so.”
Obviously, the Supreme Court of Georgia seems to think it would be pretty sleazy and unprofessional for a lawyer to begin the attorney-client relationship by making the prospective client first sign a form by which the client gives up his normal legal right to sue the lawyer for malpractice later on, if it turns out the lawyer, through negligence or misconduct, did commit malpractice. Not only would that part of the agreement be null and void as against public policy, but the lawyer would be disciplined for having had the nerve to treat his client that way.
With this as background, I want to call attention to a current practice of Fayette Senior Services, a nonprofit corporation which enjoys considerable support from our Fayette County government and the community as a whole, which requires our senior citizens who wish to be members to sign a form which reads as follows:
“I HEREBY WAIVE, RELEASE AND DISCHARGE Fayette Senior Services, Inc., their agents and employees from and against any and all liability for any loss, personal injury, including death or property damage that may have arisen out of, or [in] any way connected with, my participation or presence at the Fayette Senior Services Center, events, classes or trips, even though that liability may have arisen out of negligence or carelessness on the part of the persons or entities mentioned above and herein released.”
Not content to leave it at that, the form adds this wording:
“Furthermore, I assume all responsibility and agree to indemnify Fayette Senior Services, Inc., for any loss, damage or injury to myself or my property that may have been caused by negligence, or any act, of any person connected in any way with Fayette Senior Services, Inc. events, classes or trips. I understand that Fayette Senior Services, Inc. does not guarantee the construction, condition, or safety of the facilities or the equipment and that this Release Agreement is to be binding on me, any heirs and assigns.”
That is not all, as the form concludes with the statement: “I have read the above, understand its meaning and voluntarily sign it.”
It should be understood that this document, like many others, is sprung upon the new member as part of a smooth enrollment process where the new member is never asked to read the form and to reflect on it: he (or she) is just told to “sign here.” Keep in mind these new members are older people who quite often need reading glasses (which they may not have at hand at the time of enrollment) or experience physical reading difficulties from cataracts and other conditions.
(1) The part of the document which states “I have read the above” is quite often false. (2) The part which states “I understand its meaning” is false. (3) The part which states “I voluntarily sign it” is also false, because under the conditions the prospective member is confronted with he does not have any choice.
I am assuming here that since a pretty fair amount of tax money goes toward supporting Fayette Senior Services our county’s senior citizens should have an expectation of being entitled to the organization’s services without the imposition of extraordinary and unreasonable legal conditions.
Our Georgia law provides, at code section 1-3-7, that “Laws made for the preservation of public order or good morals may not be dispensed with or abrogated by any agreement.” But it adds, “However, a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.”
Waivers like the one Fayette Senior Services imposes upon its members create uncertainty as to what might happen, in part because the agreement is not negotiated and is obtained under coercive circumstances. Consider for a moment that Georgia code section 16-5-102 makes the exploitation and intimidation of elder persons (age 65 or more) a felony, and you can see that there are legal limits to pushing old folks around.
I ask myself sometimes if our judges ever reflect on the situation of their aging parents, or grandparents, who may be subjected to the kind of treatment where they have to sign forms like this. Would these judges be so callous as to say, you signed it, you live with it!
I suspect some would, but these are the very same judges who, as individuals, have to agree to all these lengthy agreements that come with computer equipment and software and who don’t have any more time to read them, or ability to change them, than the rest of us.
The world has changed. Agreements that come as forms have gotten longer and longer and full of tricky language no normal being can cope with. This is not like Delta Air Lines negotiating a contract with the Atlanta airport authority, where a lawyer on each side reads and studies each clause, one by one, and negotiates every detail.
I will concede that old folks generally have more time than other people to read what I regard as toxic legal trash, but they are likely to have reduced capacity to analyze and understand the one-sided legal traps designed to ensnare them.
Think about this for a minute. Somebody puts a gun to your head and tells you to sign a document which states you are voluntarily signing it. What if you sign it? Does that make it voluntary?
More and more forms are stuck under our noses that we’re asked to sign. The people who write these forms, who I suppose are mostly lawyers, think it makes them look clever if they insert in them legal booby traps of various kinds. These are the same lawyers who are required by the Supreme Court to take courses in ethics and professionalism every year and forbidden to induce their clients to limit their own liability as lawyers for malpractice.
We don’t want to encourage negligence and carelessness in our society, we want to discourage them. Liability waivers have no place in Fayette Senior Services forms, even though they might not survive a court challenge.
Somebody obviously slipped one by the 12-member board of directors of Fayette Senior Services. There are lawyers on that board, and they should pay attention.
[Now retired, Claude Y. Paquin served as president of the Fayette County Bar Association in 1992, when he advocated for the establishment of a state court in Fayette County as a way to make justice more readily available to its citizens.]
