5.2 Limits to Exculpatory Clauses
There are limits on exculpatory clauses: “There are circumstances, however, under which the public interest will not permit an exculpatory clause in a contract; these have often been grouped into three general exceptions to the rule. First, a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless, wanton, or gross. Winterstein, 16 Md. App. At 136, 293 A.2d at 824; Restatement, Second, Contracts § 195(1); Keeton,supra. Second, the contract cannot be the product of grossly unequal bargaining power. ‘When one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence, the agreement is void as against public policy.’ Winterstein, 16 Md. App. At 135-36, 293 A.2d at 824; Keeton, supra. Third, public policy will not permit exculpatory agreements in transactions affecting the public interest. Winterstein, 16 Md. App. 136, 293 A.2d at 824. The last category includes the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes these transactions, not readily susceptible to definition or broad categorization, that are so important to the public good that an exculpatory clause would be ‘patently offensive,’ such that ‘the common sense of the entire community would … pronounce it’ invalid.” Md. Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 606, 386 A.2d 1216, 1228 (1978), quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879). This standard is a strict one, in keeping with our general reluctance to invoke the nebulous public interest to disturb private contracts.”
Wolf v. Ford, 335 Md. 525, 531-532 (1994).
5.2.1 Whether an exculpatory clause will protect the scrivener/attorney/fiduciary is highly problematic: “The legal profession, with its ability to influence all aspects of citizens’ lives, public and private, cannot be separated from the concept of ordered liberty. Thus, the attorney-client relationship is one that is so affected with public interest that generally an attorney cannot require a client to release him or her from liability for future negligence. See Rule 1.8(h) of the Rules of Professional Conduct.” Wolf, supra. at footnote 6.