In settling a fee or malpractice dispute with a former client, what kinds of representations or agreements about not filing a State Bar complaint can a California lawyer ask for, and what is foreclosed by Business and Professions Code section 6090.5?

Plain-English summary

The opinion analyzes four common settlement terms that an attorney proposed to a former client in resolving a fee dispute. The former client had threatened to file a State Bar complaint over the attorney's litigation tactics. The proposed settlement terms were: (1) the former client's written representation that she has not filed a State Bar complaint; (2) her representation that she has no present intention to file one; (3) her written agreement not to file any State Bar complaint relating to or arising out of the representation; and (4) her oral agreement to the same after the written form was withdrawn.

The committee starts with the statute. Section 6090.5(a)(1) makes it cause for discipline for a lawyer to "agree or seek agreement" that professional misconduct or settlement terms not be reported to the disciplinary agency. The 1996 amendment broadened the rule, which previously only prohibited a lawyer from "requiring" non-reporting as a settlement condition. The committee, drawing on the legislative history and the dictionary meaning of "seek," holds that the statute reaches even a settlement offer proposed to a complaining witness, citing In re McCarthy (2002) and In re Brockway (2006). Section 6090.5 also augments former Rule 1-500(B).

On the four specific terms, the committee concludes:

Term 1 (representation of past non-filing): The provision itself does not, on its face, violate section 6090.5 because it reflects only past events. The committee notes, however, that depending on circumstances such a recitation could have a chilling effect on future complaints, particularly with an unsophisticated client who may mistakenly believe such a recital waives the right to file or where there is a substantial delay between negotiation and signing.

Term 2 (representation of no present intention to file): The committee concludes this provision violates section 6090.5 in the circumstances of the hypothetical. Even though framed as a factual recitation, in context it reflects the attorney's intent to suppress, signals what the attorney may believe is a material part of the bargain, and would have a deterrent effect.

Term 3 (written agreement not to file): The committee concludes this provision directly violates section 6090.5.

Term 4 (oral agreement after written withdrawal): The committee concludes the attorney's removal of the written language did not cure the ethical violation. Section 6090.5 compels the conclusion that an attorney "seeks" an agreement simply by proposing such language in a contract draft, and the statute does not distinguish between written and oral agreements.

In practice

Under California's rules as they stood at the time of the opinion, conduct consistent with the opinion is conduct in which (i) the lawyer does not propose any contract language that would seek the client's agreement not to file a State Bar complaint, whether written or oral; (ii) the lawyer treats provisions that recite the client's past non-filing or present intention not to file as potential violations depending on whether they would chill the client's future filing in context; and (iii) the lawyer recognizes that once such language is proposed in a draft, withdrawing it does not undo the violation, though the lack of resulting harm may bear on sanction under Standard 1.2(e)(iii). Footnote 6 also notes that subsequent corrective steps may bear on whether the misconduct is likely to recur. Verify against current Rule 8.4 and section 6090.5 before relying on this framework.

Common questions

Q: Can a California lawyer ask a client to agree, in settling a malpractice or fee dispute, not to file a State Bar complaint?

A: Per the opinion, no. The committee, applying section 6090.5(a)(1) and former Rule 1-500(B), holds that any such request, written or oral, is subject to discipline.

Q: What if the lawyer realizes the language is improper and removes it before signing?

A: Per the opinion, the withdrawal does not cure the violation. The committee holds that proposing such language in a draft is itself "seeking" an agreement within the meaning of the statute.

Q: Can the settlement recite that the client has not yet filed a complaint?

A: Per the opinion, the recital itself may not be a per se violation, but in context it can have a chilling effect on a future complaint, especially with unsophisticated clients or substantial delays before signing, and the committee says the chilling effect could be a violation under certain circumstances.

Q: Can the settlement recite that the client has no present intention to file a complaint?

A: Per the opinion, on the facts of the hypothetical, yes, it violates section 6090.5. The committee reasons that such a recital implies the lawyer has an intent to suppress, may signal a material bargain term, and would have a deterrent effect on future filings.

Q: Does it matter whether the agreement is oral or written?

A: Per the opinion, no. The committee holds that section 6090.5 reaches both forms of agreement and the oral nature of the agreement does not save it.

Background and rules framework

Section 6090.5(a)(1) of the Business and Professions Code makes it cause for suspension, disbarment, or other discipline for a lawyer, "whether as a party or as an attorney for a party, to agree or seek agreement, that ... [t]he professional misconduct or the terms of a settlement of a claim for professional misconduct shall not be reported to the disciplinary agency." Former Rule 1-500(B) provides that a member "shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules." The statute was originally adopted in 1986 and amended in 1996 to add "agree or seek agreement." The current California analogue includes Rule 8.4 and section 6090.5 itself.

Citations and references

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

• Former California Rule 1-500(B)

Statutes:

• California Business and Professions Code section 6090.5(a)(1), (a)(2)

Cases:

• In re McCarthy (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 364, section 6090.5 violation by settlement offer
• In re Brockway (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 944, settlement-term violation
• Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 752, narrower predecessor statute
• Matter of Blum (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 170, narrower predecessor statute
• Baker v. State Bar (1989) 49 Cal.3d 804, mitigation
• In the Matter of Blum (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 403, post-misconduct steps

Legislative materials:

• Analysis of the Senate Committee on Judiciary regarding Senate Bill 1569 (Presley), as amended February 24, 1986

Secondary:

• Webster's Third New International Dictionary (3d ed. 2002)
• State Bar's Standards for Attorney Sanctions for Professional Misconduct, Standard 1.2

See also

• CA COPRAC Op. 2009-178: Settlement With General Release and Civ. Code 1542 Waiver
• CA COPRAC Op. 2009-176: Fee-Waiver Settlements
• CA COPRAC Op. 2002-160: Missing Client Settlement Authority and Fees
• CA COPRAC Op. 2019-198: Settling Before Withdrawal

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/2025-11/CAL%202012-185%20%2812-21-12%29.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. 2012-185

ISSUES: In settling a dispute with a former client, may an attorney seek: (1) the former client's written representation that no State Bar complaint has been filed; (2) the former client's representation that he or she has no present intention to file a State Bar complaint; (3) the former client's written contractual agreement not to file a State Bar complaint against the attorney based on matters relating to or arising out of the representation; or (4) the former client's oral agreement not to file a State Bar complaint against the attorney based on matters relating to or arising out of the representation?

DIGEST: Business and Professions Code section 6090.5 prohibits an attorney from seeking a client's written or oral agreement not to file a State Bar complaint against that attorney. "Seeking" an agreement includes any attorney communication to a client proposing or suggesting a prohibited agreement. "Seeking" also may encompass factual recitations in the settlement agreement that the client has not filed a State Bar complaint, or concerning the client's future intentions regarding filing a State Bar complaint. Section 6090.5 might prohibit these types of recitations because they could produce an impermissible chilling effect on the client's future filing of a State Bar complaint. If a lawyer seeks an oral or written agreement to not file a State Bar complaint, withdrawal of that request does not cure the ethical violation.

AUTHORITIES INTERPRETED: Rules 1-500(B) of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code section 6090.5.

STATEMENT OF FACTS

Attorney represented Former Client in litigation which has concluded. Attorney sent a closing letter and final bill. Former Client agrees that the representation has concluded. During that representation, Attorney and Former Client had a dispute about Attorney's litigation tactics. Former Client claimed Attorney violated State Bar ethics rules, and Former Client threatened to file a State Bar complaint against Attorney. Attorney and Former Client reached a preliminary agreement to settle their dispute by Attorney writing-off a portion of Former Client's final bill, and by Former Client agreeing to include the following provisions proposed by Attorney in a signed settlement agreement: (1) Former Client represents that she has not filed a State Bar complaint against Attorney; (2) Former Client represents that she has no present intention to file a State Bar complaint against Attorney; and (3) Former Client agrees not to file any complaint against Attorney with the State Bar relating to or arising out of the representation. After consulting Business and Professions Code section 6090.5, Attorney informed Former Client that the final written settlement agreement need not include a written agreement that Former Client would not report Attorney to the State Bar – because Attorney told Former Client he was satisfied with taking Former Client at her word that she would not do so.

DISCUSSION

1. Business and Professions Code section 6090.5

This opinion illustrates various applications of California Business and Professions Code section 6090.5, which provides in part:

(a) It is cause for suspension, disbarment, or other discipline for any member, whether as a party or as an attorney for a party, to agree or seek agreement, that:
(1) The professional misconduct or the terms of a settlement of a claim for professional misconduct shall not be reported to the disciplinary agency.

This section applies to all settlements, whether made before or after the commencement of a civil action.

Section 6090.5 initially was adopted by the Legislature in 1986. Specifically, the purpose was "to provide for closer monitoring of attorney activity, and greater breadth in attorney punishment." With regard to the specific language of section 6090.5, committee analysis addressed the harm in situations where attorneys, against whom civil actions for misconduct were filed, required plaintiffs to agree not to file complaints with the Bar as conditions of settlement.

In 1996, the Legislature amended section 6090.5 by adding the language "to agree or seek agreement." Previously, section 6090.5 stated that a member could not "require" as a condition of settlement that misconduct not be reported. The added term "to agree or seek agreement" implies that the Legislature sought to expand section 6090.5's application. No California ethics case has yet interpreted the phrase "to seek agreement," yet the common usage of the word "seek" is broad. Webster's Dictionary defines "seek" as "to resort to, to go to," "to go in search of," "look for," and to "inquire for."

Indeed, a settlement offer by an attorney to a complaining witness to withdraw a State Bar complaint is a violation of section 6090.5. In re McCarthy (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 364 involved an attorney who committed defalcation against a business partner while acting as a fiduciary. While attempting to settle the dispute, the attorney offered a settlement term that would have the complaining witness "contact the State Bar to withdraw any claims." The complaining witness refused, and settlement was never consummated. In disciplinary proceedings, the court held that the attorney's intent to agree to withdrawal of the State Bar complaint in the civil settlement agreement was itself a violation of section 6090.5. In In re Brockway (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 944, an attorney violated section 6090.5(a)(2) when he entered into a settlement agreement resolving a fee dispute in that the client "agreed to settle [the fee] dispute and to withdraw the complaint pending before the State Bar."

Based upon legislative intent as reflected the 1996 amendment, we conclude that section 6090.5 must be broadly interpreted as prohibiting attorneys from seeking to conceal from the State Bar unethical conduct through a written or oral client agreement. Section 6090.5, accordingly, also augments rule 1-500(B): "A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules."

2. Factual Application

A. Former Client's Factual Representations

The first contractual provision in question – "Former Client represents that she has not filed a State Bar complaint against Attorney" – concerns a factual representation. The representation does not seek a settlement term that Former Client will refrain from reporting misconduct to the State Bar. It does not involve any enforceable promise from Former Client to do or refrain from doing anything. Arguably, Attorney does not violate section 6090.5 by seeking such a factual representation. The provision refers only to events that have occurred in the past and, therefore, cannot be construed as Attorney's attempt to "seek" a Former Client agreement not to report in the future.

Yet, from the Former Client's perspective, this factual representation may have a chilling effect. In our facts, Former Client had already threatened filing of a State Bar Complaint, and this contractual provision might dissuade Former Client from doing so. In particular, an unsophisticated client may mistakenly believe that such a factual representation would waive that client's right to file a complaint. Further, a substantial delay between the time of negotiation and the time of signing of the agreement may have the same effect as seeking an agreement not to file a State Bar complaint during the delay. Accordingly, while this provision itself may not be a violation of section 6090.5, we conclude the chilling effect on Former Client's future actions could be a violation under certain circumstances.

B. Former Client's Representations About Future Intentions

The second contractual provision in question – "Former Client represents that she has no present intention to file a State Bar complaint against Attorney" – does not violate section 6090.5 in and of itself. It could be argued that, like the first provision, it is a factual recitation. It factually recites Former Client's present intention. It does not obligate Former Client to do or refrain from doing anything.

Nonetheless, we conclude under our facts that this provision objectively reflects Attorney's intent to suppress the complaint. Former Client previously threatened to file a complaint with the State Bar. A statement that Former Client "has no present intention to file a State Bar complaint" implies that Attorney may have intent, which may itself constitute "seeking" an implicit agreement. The statement of Former Client's present intent also may be a material part of the settlement bargain from the perspective of Attorney, particularly if Attorney intended the provision to produce a chilling effect on any filing of a State Bar complaint. Thus, the provision would have the effect of deterring a future report. Section 6090.5 was adopted and amended to prohibit settlements seeking to dissuade or prevent filing of disciplinary complaints. Accordingly, including a provision stating that Former Client "has no present intention to file a State Bar complaint" is considered an ethical violation.

C. Former Client's Agreement Not to Report

The third contractual provision in question – "Former Client agrees not to file any complaint against Attorney with the State Bar relating to or arising out of the representation" – would violate section 6090.5 if included in the settlement agreement. The provision is directly contrary to section 6090.5.

We also conclude that Attorney's removal of that language before the contract was signed does not cure the ethical violation. In our facts, Attorney eventually recognized that including this settlement provision would violate section 6090.5. Attorney then sought to withdraw the provision. Nonetheless, section 6090.5 compels the conclusion that an attorney "seeks" a client agreement not to report allegations of ethical breaches simply by proposing such language in a contract draft. We conclude Attorney also violated section 6090.5 by obtaining Former Client's agreement not to report – albeit orally. The mere fact that the agreement was oral and not written is irrelevant under section 6090.5 – both forms of agreement violate section 6090.5.

CONCLUSION

Business and Professions Code section 6090.5 bars an attorney's attempt, in settling a dispute with his or her client, to seek or obtain a client's oral or written agreement not to make a State Bar complaint. Section 6090.5 may also prohibit a lawyer from seeking representations of the client's intentions or actions regarding filing a complaint with the State Bar. Even a simple contractual factual recitation that the client has not yet made a State Bar complaint in the past may be an ethical violation since it could produce a chilling effect on the client's future actions. Once a lawyer seeks such an oral or written agreement, the withdrawal of that request will not cure the ethical violation.

This Opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only.