In a California case under a fee-shifting statute, may plaintiff's counsel block a settlement her client wants to accept because it waives statutory fees, and does defense counsel violate any ethical rule by recommending or conveying a fee-waiver settlement offer, either in a particular case or as a general practice?

Currency note

This opinion was issued in 2009, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets Rules 1-500 (current Rule 5.6, restrictions on lawyer's right to practice), 3-510 (current Rule 1.4.1, communication of settlement offers), and former Rule 2-109, together with Business and Professions Code sections 6068(a), (b), (c), and (h), and 6103.5. Current California Rule 1.2 (scope of representation and allocation of authority), Rule 1.4 (communication), and Rule 5.6 (restrictions on practice) now cover the same ground. The fee-shifting statutes and the Evans v. Jeff D. line of federal authority on which the opinion relies are independently controlling on the legal questions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific reference.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The hypothetical: Client engages Attorney A to prosecute a lawsuit against Defendant under "the Act," a fee-shifting statute. Their written fee agreement (legally and ethically compliant) provides for a one-third contingent fee or the statutory award, whichever is greater. Attorney A has represented several plaintiffs against Defendant; defense counsel Attorney B, on Defendant's behalf, has made fee-waiver settlement offers in Defendant's cases as a general practice. After motion practice and discovery in Client's case, Attorney B conveys a $20,000 fee-waiver settlement offer. Acceptance would leave Attorney A with far less than the $100,000 reasonable value of her services. Attorney A believes the case is winnable at trial; Client, weary of litigation, instructs Attorney A to accept.

The committee answers three questions.

Issue 1 (may plaintiff's counsel bar the settlement): No. Subject to rules, statutes, and judicial decisions governing fees, Attorney A has a contractual right to compensation, but she may not veto a settlement Client wishes to accept in order to benefit herself. Her obligation is to inform Client of the offer and consummate the settlement in accordance with Client's wishes (citing former Rule 3-510 and Business and Professions Code section 6103.5, together with ABA Model Rule 1.2(a)). California State Bar Formal Opinion 1989-114 had already held that a lawyer is ethically obligated to inform a client of a fee-waiver settlement offer that achieves the client's litigation goals, even if it results in the lawyer receiving no remuneration; the committee reaffirms that conclusion. (The opinion notes that under some fee-shifting statutes, including the California Fair Employment and Housing Act under Flannery v. Prentice, statutory fees actually awarded belong to the lawyer absent agreement otherwise.)

Issue 2 (may defense counsel make a fee-waiver offer in this case): No ethical prohibition. The committee found that fee-waiver settlement offers are not ethically prohibited and may serve both sides. Under California Business and Professions Code section 6068(a), lawyers must support the law and the legal system; California law has a "strong policy encouraging settlements" (Levy v. Superior Court; Stewart v. Preston Pipeline). The statutory right to seek a fee award belongs to the client, who can waive it (consistent with Evans v. Jeff D. (1986) 475 U.S. 717 under the federal Civil Rights Attorney's Fees Awards Act). The right is granted to facilitate the underlying claim, not to support the lawyer. The committee considered and declined to follow Los Angeles County Bar Association Formal Opinion 445, finding its arguments (based on the duty to support the law (§ 6068(a), (b)), the duty not to reject the cause of the defenseless or oppressed (§ 6068(h)), and the prohibition on restrictions on a lawyer's right to practice (former Rule 2-109; Rule 1-500)) unpersuasive: those duties do not impose a specific prohibition on fee-waiver settlement offers, and a fee-waiver settlement does not purport to limit the lawyer's right to engage in the practice itself even if it affects how much money the lawyer makes in a particular case.

Issue 3 (may defense counsel make fee-waiver offers as a general practice): No ethical prohibition. The committee acknowledged the policy concerns: a general practice of fee-waiver offers might shrink the pool of lawyers willing to take cases under fee-shifting statutes (a concern raised in Jeff D. as "remote," though the committee noted that empirical evidence since then is mixed, citing Nazer and Albiston & Nielsen). But the committee held that, absent a holding that such offers are unlawful under any fee-shifting statute, they are not ethically prohibited. The committee noted Bernhardt v. County of Los Angeles's statement that such a practice "present[ed] serious questions," but observed that Pony v. County of Los Angeles later characterized that language as dicta.

Common questions

Q: Must plaintiff's counsel convey a fee-waiver settlement offer to the client?

A: Per the opinion, yes. Plaintiff's counsel must inform the client of a fee-waiver settlement offer and, if the client wishes to accept, must consummate the settlement, even if doing so reduces or eliminates counsel's recovery. The committee grounds this in former Rule 3-510 (communication of settlement offers) and Business and Professions Code section 6103.5, alongside the principle that the decision to settle belongs to the client.

Q: May plaintiff's counsel veto a fee-waiver settlement to protect her own fee recovery?

A: Per the opinion, no. The lawyer may not veto a settlement the client wishes to accept in order to benefit herself, even where the reasonable value of counsel's services greatly exceeds the settlement amount.

Q: Is it ethically permissible for defense counsel to recommend or convey a fee-waiver settlement offer in a particular case?

A: Per the opinion, yes. Such offers are not ethically prohibited. The statutory right to seek a fee award belongs to the plaintiff, who may waive it as part of a settlement. Defense counsel's recommendation and conveyance support the strong policy encouraging settlements.

Q: May defense counsel make fee-waiver settlement offers in cases generally, as a policy?

A: Per the opinion, yes. The committee acknowledged the concern that a general practice may shrink the pool of plaintiffs' counsel willing to take fee-shifting cases, but it concluded that, in the absence of any holding that such offers are unlawful under any fee-shifting statute, they are not ethically prohibited even when made as a general practice.

Q: Why did the committee decline to follow LACBA Formal Opinion 445?

A: Per the opinion, the committee analyzed each of LACBA's three grounds and rejected them: the duty to support the law and the legal system has not been read in any reported decision to bar fee-waiver settlement offers; the duty not to reject the cause of the defenseless or oppressed is a duty to provide representation, not to refrain from settlement offers; and the prohibition on agreements restricting the lawyer's right to practice (former Rule 2-109; current Rule 1-500) does not apply because a fee-waiver settlement does not limit the lawyer's right to engage in practice, even if it affects compensation in a given case.

Q: Who owns the statutory attorney's fee award when one is actually obtained?

A: Per the opinion, this depends on the statute and any agreement between lawyer and client. Citing Flannery v. Prentice (2001) 26 Cal.4th 572, the committee notes that, absent an agreement to the contrary, statutory fees awarded under the California Fair Employment and Housing Act belong to the lawyer. The committee also notes (citing Pony v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1138) that an assignment of the federal Fees Act right to the lawyer is legally void.

Background and rules framework

The opinion interprets former California Rules 1-500 (restrictions on lawyer's right to practice), 3-510 (communication of settlement offers), and former Rule 2-109, together with Business and Professions Code sections 6068(a), (b), (c), and (h) (duties to support the law, oppose unjust laws, counsel only legal actions, never reject the cause of the defenseless or oppressed), and 6103.5 (duty to communicate written settlement offers). Functionally, current California Rule 1.2 (scope of representation), Rule 1.4 (communication), Rule 1.4.1 (communication of settlement offers), and Rule 5.6 (restrictions on practice) now address the same ground. The opinion's primary anchoring authority is Evans v. Jeff D. (1986) 475 U.S. 717, which held that fee-waiver questions are legal rather than ethical and that the federal Fees Act does not prohibit them.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-500 (restrictions on lawyer's right to practice)
• Former California Rule 2-109 (now part of Rule 1-500)
• Former California Rule 3-510 (communication of settlement offers)

Statutes:

• California Business and Professions Code section 6068, subdivisions (a), (b), (c), and (h)
• California Business and Professions Code section 6103.5 (duty to communicate written settlement offers)
• Civil Rights Attorney's Fees Awards Act of 1976 (referenced as the "Fees Act")
• California Fair Employment and Housing Act, Government Code section 12900 et seq.

Cases:

• Evans v. Jeff D. (1986) 475 U.S. 717, fee-waiver settlement offers are legally permissible under the Fees Act
• Levy v. Superior Court (1995) 10 Cal.4th 578, strong policy encouraging settlements
• Stewart v. Preston Pipeline, Inc. (2005) 134 Cal.App.4th 1565, same
• Flannery v. Prentice (2001) 26 Cal.4th 572, FEHA attorney's fee award belongs to the lawyer absent contrary agreement
• Pony v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1138, assignment of Fees Act right to lawyer is void
• Bernhardt v. County of Los Angeles (9th Cir. 2002) 279 F.3d 862, dicta on general practice of fee-waiver offers
• Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources (2001) 532 U.S. 598, rejecting catalyst theory under Fees Act
• Prandini v. Nat'l Tea Co. (3rd Cir. 1977) 557 F.2d 1015
• Mendoza v. United States (9th Cir. 1980) 623 F.2d 1338
• Moore v. Nat'l Ass'n of Sec. Dealers, Inc. (D.C. Cir. 1985) 246 F.2d 1093
• Chicano Police Officers' Ass'n v. Stover (10th Cir. 1980) 624 F.2d 127

Other opinions and authorities cited:

• California State Bar Formal Opinion 1989-114 (duty to inform client of fee-waiver settlement offer)
• California State Bar Formal Opinion 1994-136 (assignment of fee right to lawyer; rendered of limited consequence by Pony)
• Los Angeles County Bar Association Formal Opinion 445 (1987) (committee declines to follow)
• Association of the Bar of the City of New York Formal Opinion 1980-94 (superseded)
• Association of the Bar of the City of New York Formal Opinion 1987-4 (post-Jeff D. withdrawal of 1980-94)
• Committee on Legal Ethics of the District of Columbia Bar Association Opinion 147 (1985)
• State Bar of Georgia Advisory Opinion 39 (1984)
• State Bar of New Mexico Advisory Opinion 1985-3
• Utah State Bar Ethics Advisory Opinion 98-05
• ABA Model Rule 1.2(a) (client decision whether to settle)
• Vapnek et al., California Practice Guide: Professional Responsibility (The Rutter Group 2007)
• Richard M. Pearl, California Attorney Fee Awards § 17 (2006)
• Mary Francis Derfner & Arthur D. Wolf, Court Awarded Attorney Fees chpt. 29-37 (2006)
• Nazer, Conflict and Solidarity: The Legacy of Evans v. Jeff D. (2004) 17 Geo. J. Legal Ethics 499
• Albiston & Nielsen, The Procedural Attack on Civil Rights (2007) 54 U.C.L.A. L. Rev. 1087

See also

• CA COPRAC Op. 2002-160: Missing client settlement authority and fees
• CA COPRAC Op. 2006-170: Charging lien in contingency fee agreement
• CA COPRAC Op. 2008-175: Successor counsel, prior lien, and client concealment instruction

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/2009-176.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2009-176

ISSUES: In a lawsuit prosecuted by Attorney A against Defendant, Client has a statutory right to seek an award of attorney's fees. Attorney B, Defendant's counsel, makes a settlement offer, conditioned on Client's waiver of his statutory right to attorney's fees, that is insufficient to compensate Attorney A for her fees. (1) May Attorney A bar the settlement notwithstanding Client's desire to accept it? (2) Does Attorney B violate any ethical obligation by recommending or conveying the fee-waiver settlement offer in this case? (3) Does Attorney B violate any ethical obligation by recommending or conveying fee-waiver settlement offers in cases generally?

DIGEST:
1. A lawyer must inform the client of a fee-waiver settlement offer and consummate the settlement in accordance with the client's wishes even if it reduces the likelihood of recovering some or all of his or her fees.

2. A lawyer does not violate any ethical obligation by recommending or conveying a fee-waiver settlement offer in a given case.

3. A lawyer does not violate any ethical obligation by recommending or conveying fee-waiver settlement offers in cases generally.

AUTHORITIES INTERPRETED: Rules 1-500, 3-510, and former rule 2-109 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code sections 6068, subdivisions (a), (b), (c) and (h), and 6103.5.

STATEMENT OF FACTS

Client engages Attorney A to prosecute a lawsuit against Defendant under the Act. In addition to creating substantive claims, the Act is a "fee shifting statute," granting a successful plaintiff a right to seek an award of attorney's fees. Client and Attorney A enter into a written fee agreement that is legally valid and ethically compliant. The fee agreement provides that Attorney A shall be paid a one-third contingent fee or the statutory award, whichever is greater.

Attorney A has previously represented, and currently represents, others pursuing claims under the Act against Defendant. Attorney B, counsel for Defendant, has handled many of these matters and is responsible for defending Client's lawsuit. In the past, after settling claims under the Act, the plaintiffs have filed motions for attorney's fees. As a result, on Attorney B's recommendation, Defendant has decided to make fee-waiver settlement offers in lawsuits under the Act generally, and Attorney B has conveyed such offers.

Extensive motion practice and pretrial discovery ensue in Client's lawsuit. Attorney B recommends to Defendant to make a fee-waiver settlement offer of $20,000, and Defendant accepts the recommendation. Attorney B conveys the settlement offer to Attorney A. If Client were to accept the settlement offer, Attorney A would receive far less than the value of the time she has invested in Client's lawsuit. The reasonable value of her services totals $100,000.

In light of the evidence revealed in discovery, Attorney A believes Client's case to be winnable at trial and the fee-waiver settlement offer to be less than the potential value of Client's claim. Attorney A advises Client regarding her analysis of the merits, likelihood of success at trial, potential damages award, and the practicalities of litigation. Client, weary of litigation, decides the settlement offer is adequate and instructs Attorney A to accept it.

DISCUSSION

1. Statutory Attorney's Fees

A variety of statutes that create a substantive claim also grant the successful plaintiff a right to seek an award of attorney's fees. Such "fee shifting statutes," often involving civil rights, have been the subject of much discussion by us and others.

Discussion has centered around the decision made by the United States Supreme Court in Evans v. Jeff D. (1986) 475 U.S. 717 [106 S.Ct. 1531] ("Jeff D."), a case involving the Civil Rights Attorney's Fees Awards Act of 1976 ("Fees Act").

Prior to the decision made in Jeff D., both the United States Courts of Appeals and state and local ethics committees were divided as to whether fee-waiver settlement offers were legally permissible and not ethically prohibited. In general, opposition to such settlements focused on the risk of undermining the legislative purpose of enabling "private attorneys general" and interfering with the administration of justice.

The ruling made in Jeff D. changed the debate. At the threshold, it held that fee-waiver settlement offers presented legal questions rather than ethical questions. (See, id. at p. 727 [any "duty" on the part of the trial court to reject a proposed fee-waiver settlement offer under the Fees Act "derives ultimately from the Fees Act rather than from the strictures of professional ethics"]; id. at p. 728 [the "defect, if any," in such a settlement offer "must be traced not to the rules of ethics but to the Fees Act"].) It proceeded to hold that fee-waiver settlement offers were legally permissible under the Fees Act on the ground that it is the client who possesses, and can waive, the right to seek an award of attorney's fees. (Id. at pp. 730-38.) It noted an argument that fee-waiver settlement offers would not be legally permissible under the Fees Act if such offers were made in cases generally pursuant to a "policy" or "practice." (Id. at p. 739.) It declined, however, to pass on the merits of the argument. (Id. at p. 740.)

In the wake of Jeff D., with a single noteworthy exception to be addressed in due course, state and local ethics committees in various jurisdictions withdrew old opinions inconsistent with Jeff D. and issued new opinions consistent with it.

Since Jeff D., we have considered related issues twice. In California State Bar Formal Opn. No. 1989-114, we concluded that a lawyer is ethically obligated to inform a client that the client possesses, and can waive, the right to seek an award of statutory attorney's fees as a condition of settlement (presumably under all fee-shifting statutes, not only the Fees Act) even though it may result in the lawyer not receiving remuneration for services performed. That conclusion remains sound, although under some fee-shifting statutes at least, the lawyer is entitled to the statutory attorney's fees actually awarded. (See, Flannery v. Prentice (2001) 26 Cal.4th 572, 577 [110 Cal.Rptr.2d 809] [absent an agreement to the contrary, attorney's fees awarded under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) belong to the lawyer].) In California State Bar Formal Opn. No. 1994-136, we concluded that, so long as certain conditions were met, an agreement between a lawyer and a client assigning to the lawyer the client's right to seek an award of attorney's fees under the Fees Act was not ethically prohibited. Pony v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1138, 1143-1144, which holds that such an assignment is legally void, has rendered that conclusion of little consequence.

Here we narrowly address certain ethical issues arising from fee-waiver settlement offers faced by attorneys representing plaintiffs and by attorneys representing defendants.

2. An Attorney May Not Bar Settlement

The first question presented by the factual scenario is whether Attorney A may bar the $20,000 fee-waiver settlement offered to Client by Defendant through Attorney B, notwithstanding Client's desire to accept the offer. The answer is no.

Subject to rules, statutory provisions, and judicial decisions governing fees and fee agreements, a lawyer has a contractual right to the compensation specified in the fee agreement with a client. We consider here a situation in which Attorney A has such a contractual right to the greater of a one-third contingent fee or the statutory attorney's fee, and has rendered services fairly valued at an amount much greater than the $20,000 fee-waiver settlement offer that Client wishes to accept.

In the factual scenario, it is to Attorney A's own personal advantage to press Client's case to conclusion in hopes of securing a victory and assurance of payment under the fee-shifting provisions of the Act. Attorney A, however, may not veto a settlement that Client wishes to accept in order to benefit herself. Instead, Attorney A is obligated to inform Client of Defendant's settlement offer and to consummate the settlement in accordance with Client's wishes even if it reduces the likelihood of recovering the full value of her services.

3. An Attorney May Recommend And Convey A Fee-Waiver Settlement Offer In Any Given Case

The second question presented by the factual scenario is whether Attorney B violates any ethical obligation by recommending to Defendant, or by conveying on its behalf, the $20,000 fee-waiver settlement offer in this lawsuit under the Act. Again, the answer is no.

We are of the opinion that a fee-waiver settlement offer is not ethically prohibited. Indeed, such offers may properly serve not only the interests of the offering defendant, but also the accepting plaintiff. The plaintiff has asserted violation of statutory rights, the defendant has contested such violation, and the two of them have reached an accord that is mutually satisfactory and brings closure to the dispute.

It is not ethically prohibited, of course, for a lawyer to recommend to his or her client to offer to enter into a settlement and subsequently to convey such an offer. Among the lawyer's ethical obligations is to "support the Constitution and laws of the United States and of this state." (Bus. & Prof. Code § 6068, subd. (a).) The laws of this state are informed by a "strong policy encouraging settlements." (Levy v. Superior Court (1995) 10 Cal.4th 578, 592 [41 Cal.Rptr.2d 878]; accord, e.g., Stewart v. Preston Pipeline, Inc. (2005) 134 Cal.App.4th 1565, 1582 [36 Cal.Rptr.3d 901] [quoting Levy].)

It is likewise not ethically prohibited for an attorney to recommend and convey a fee-waiver settlement offer of claims under a statute granting a successful plaintiff a right to seek an award of attorney's fees. "Many federal and state statutes authorize courts to award attorney's fees to the party who prevails in the particular litigation"; "some statutes mandate prevailing party awards, others are discretionary"; some statutes make the "prevailing party fee awards . . . awardable" to the plaintiff, others to the plaintiff's lawyer. (Vapnek et al., Cal. Practice Guide: Professional Responsibility, supra, § 5:337-5:339.5.) Under a fee-waiver settlement offer, the defendant makes an offer conditioned on the plaintiff's waiver of his or her right to seek an award of attorney's fees, a right that, as noted above, belongs to the plaintiff and not the plaintiff's attorney. The plaintiff is granted the right to seek an award of attorney's fees to facilitate the assertion and vindication of the underlying claim, not to support his or her lawyer. (See, e.g., Jeff D., supra, 475 U.S. at p. 732, fn. 20 [speaking of the right to seek an award of attorney's fees granted by the Fees Act as a "bargaining chip"].) It appears that no such right to seek an award of attorney's fees is unwaivable by a plaintiff. If it were otherwise, assertion and vindication of the underlying claim by the plaintiff would be "impede[d]" "by reducing the attractiveness of settlement" to the defendant, and would thereby run counter to the strong policy encouraging settlements. (Id. at pp. 731-732 [Fees Act]; accord, Pony, supra, 433 F.3d at p. 1144 [same].)

Against this background, we conclude that there is no ethical obligation that would bar a fee-waiver settlement offer.

In arriving at this conclusion, we have considered the single noteworthy contrary authority issued since Jeff D., Los Angeles County Bar Association, Formal Opn. No. 445 (1987) ("Formal Opn. No. 445"). After such consideration, we find Formal Opn. No. 445 unpersuasive and decline to follow it.

Formal Opn. No. 445 opens with an admission that there is no ethical obligation "specifically dealing" with fee-waiver settlement offers, and closes with a recognition of the "strong . . . policy" encouraging settlements. Nonetheless, between these acknowledgements, the opinion finds fee-waiver settlement offers ethically objectionable, citing (1) the lawyer's ethical obligation to support the law and the legal system (§ 6068, subds. (a), (b)) as a basis for an obligation to ensure access to justice, (2) the lawyer's ethical obligation not to reject the cause of the defenseless or the oppressed (§ 6068, subd. (h)), and (3) the lawyer's ethical prohibition against entering into, or participating in, any agreement restricting a lawyer's right to practice (former rule 2-109; current rule 1-500). There is indeed an ethical obligation to support the law and the legal system and facilitate access to justice. That obligation, however, has never been construed in any reported decision of which we are aware to impose any specific prohibition on lawyers, including a bar against fee-waiver settlement offers. For its part, the ethical obligation not to reject the cause of the defenseless or the oppressed imposes a duty to provide representation when needed, not to refrain from making fee-waiver settlement offers. Lastly, the ethical prohibition against agreements restricting a lawyer's right to practice is not implicated in any way. Although fee-waiver settlement offers may affect how much money a lawyer may make in practice, they do not purport to limit the lawyer's right to engage in the practice itself.

4. An Attorney May Recommend And Convey Fee-Waiver Settlement Offers In Cases Generally

The third question presented by the factual scenario is whether Attorney B violates any ethical obligation by recommending to Defendant, or by conveying on its behalf, fee-waiver settlement offers in lawsuits under the Act generally. Here too, the answer is no.

We are of the opinion that fee-waiver settlement offers are not ethically prohibited in cases generally. Just as there is no ethical obligation barring such a settlement offer in any given case, neither is there any such obligation barring settlement offers of this sort in cases generally.

Formal Opn. No. 445 expresses a fear that the making of fee-waiver settlement offers in cases generally might shrink the pool of lawyers willing to represent the class of plaintiffs who have been granted statutory rights to seek awards of attorney's fees. Two decades ago, at the time Jeff D. was decided, the United States Supreme Court expressed the view that it was only a "remote" possibility that fee-waiver settlement offers might shrink the pool of lawyers willing to take cases under the Fees Act. (Jeff D., supra, 475 U.S. at p. 742, fn. 35.) That may no longer be true. But it is unknown whether fee-waiver settlement offers have shrunk, or may shrink, the pool of lawyers willing to take cases under fee-shifting statutes generally. It is also unknown what costs and benefits have flowed, or may flow, from such pool-shrinking in terms such as the foreclosure of meritorious cases, on the one side, and the deterrence of frivolous cases, on the other.

We recognize that an argument could be made that a lawyer might violate his or her ethical obligation to "support the . . . law[ ]" (Bus. & Prof. Code § 6068, subd. (a)) and to "counsel" and "maintain" "only" "those actions, proceedings, [and] defenses" that "appear to him or her" to be "legal" (Bus. & Prof. Code § 6068, subd. (c)) if the making of fee-waiver settlement offers in cases generally were held to be unlawful. But so far as we are aware, the making of such settlement offers has not been held unlawful under any fee-shifting statute. It is true that, in Bernhardt v. County of Los Angeles, supra, 279 F.3d 862, the court stated that the making of fee-waiver settlement offers in cases generally under the Fees Act of 1976 "present[ed] serious questions." (Id. at 926.) But subsequently in Pony v. County of Los Angeles, supra, 433 F.3d 1138, the same court characterized that statement as "dicta." (Id. at 1145, fn. 4.) We believe that, in the absence of any holding of unlawfulness under any fee-shifting statute, fee-waiver settlement offers, which are not proscribed by any rule, statutory provision, or judicial decision, are not ethically prohibited in cases generally.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.