Ethics Advisory Opinion Committee
Opinion Number 16-02
Issued March 23, 2016
- What are the ethical constraints on lawyers settling potential legal malpractice claims or bar complaints with clients?
- A lawyer may neither request nor agree to limit his or her duties to the administration of justice regarding filing or participating in a bar complaint.
- A lawyer may not request that a present or former client refrain from filing or participating in a bar complaint as a condition to settling disputes between the client and the lawyer.
- A lawyer may not participate in an agreement that limits the lawyer’s liability for malpractice or prohibits the lawyer from accepting future clients except as permitted by rule or law.
- There are three factual situation to consider:
- In the context of settling civil litigation a lawyer for one party demands as a condition of settlement that the lawyer for the opposing party agree to forgo filing or participating in a bar complaint.
- A lawyer is settling a dispute with a former client. That client has threatened to file a bar complaint which the lawyer believes frivolous. As a condition of settling the dispute the lawyer wishes to include a provision precluding the former client from filing or participating in a bar complaint.
- Finally, in consideration of settlement, a party demands conditions that would limit the lawyer’s ability to take further cases against the settling party or waives a former client’s malpractice claim.
- Requesting an opposing attorney, an opposing party, or a client or former client to refrain from filing or participating in a bar complaint as a condition of settlement of outstanding disputes violates several of the Rules of Professional Conduct including Rules 8.3 and 8.4. Agreeing to refrain from filing or participating in such a complaint also violates these same rules.
- Rule 8.3 of the Rules of Professional Conduct requires that a lawyer who has knowledge “that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority” (emphasis added). Accordingly, Rule 8.3(a) would preclude a lawyer from agreeing to refrain from filing or participating in a meritorious bar complaint.
- Rule 8.4 (a) provides that “it is professional misconduct” for a lawyer to “knowingly assist or induce another” to “violate . . .the Rules of Professional Conduct.” Because it is unethical for an attorney to agree not to report a serious breach of the Rules of Professional conduct, Rule 8.4 (a) would preclude a lawyer from making such a request as his conduct would knowingly “assist or induce” a violation of the other lawyer’s obligation to report under Rule 8.3.
- Demands to forego reporting as a condition of settlement would hinder bar authorities from meeting their responsibilities of deterrence of serious matters and the protection of the public. As the Comment to Rule 8.3 notes, “An apparently isolated incident may indicate a pattern of misconduct that only a disciplinary investigation can uncover.”
- Simply because the opposing party or client is a lay person without duties to the public and the bar does not lessen the misconduct in attempting to obtain an agreement not to file a complaint. It is “professional misconduct” to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(d). Seeking to prevent a client or opposing party from filing or participating in a bar complaint is “prejudicial to the administration of justice.”