May a Colorado lawyer condition settlement of a malpractice action on the claimant withdrawing a disciplinary grievance against the defendant lawyer?

Plain-English summary

Opinion 56 addressed a malpractice action arising from conduct that also prompted a grievance against the defendant lawyer. Defense counsel proposed settlement terms requiring the claimant to ask that the grievance be withdrawn as improvidently filed and to represent that discovery had shown the grievance allegations were untrue.

The Committee concluded that insisting on termination of the grievance process had the same coercive effect as threats used to gain an advantage in civil litigation. Once a grievance was filed, the disciplinary process served the public rather than merely the individual complainant. Conditioning settlement on withdrawal could therefore subvert that process and permit possible misconduct to go undisciplined. The Committee treated the condition as prejudicial to the administration of justice under former DR 1-102(A)(5).

The 1998 addendum distinguished settlements reached through Colorado's formal grievance-mediation process. Under the cited court rules, relatively minor grievances could be resolved through written mediation agreements, and resolution of related fee or malpractice disputes was appropriate within that process. The Committee concluded that seeking or obtaining such a comprehensive mediated resolution did not violate Colorado RPC 8.4(d) or another Colorado Rule of Professional Conduct.

Currency note

This opinion was issued in 1980, before Colorado's 2008 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. The opinion received addenda in 1995 and 1998.

Common questions

Q: Could defense counsel require the claimant to withdraw the grievance as part of settlement?

A: No. The opinion concluded that such a condition improperly interfered with the disciplinary process and was prejudicial to the administration of justice.

Q: Did it matter that the grievance and malpractice case arose from the same conduct?

A: No. The opinion treated the disciplinary proceeding as distinct from the claimant's civil action because, once initiated, a meritorious grievance was prosecuted on behalf of the people of Colorado rather than the complainant.

Q: Could related civil disputes ever be resolved during grievance proceedings?

A: Yes, under the 1998 addendum. It permitted resolution of pending or contemplated fee and malpractice disputes as part of a mediation conducted under the Colorado grievance-mediation rules cited in the addendum.

Background and rules framework

The original opinion applied former DR 7-105, EC 7-21, and DR 1-102(A)(5). The 1995 addendum identified Colorado RPC 4.5, 3.1, 3.3(a)(1), (2), and (4), 3.4, 8.1(b), 8.4(d), and 8.4(f) for review with the opinion. The 1998 addendum relied on the formal grievance-mediation provisions then codified in C.R.C.P. 241.4(c)(11), 251.3(c)(11), and 251.13.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 4.5 (threatening prosecution), 3.1 (meritorious claims), 3.3 (candor), and 3.4 (fairness)
• Colo. RPC 8.1(b), 8.4(d), and 8.4(f) (disciplinary matters and misconduct)
• Former DR 7-105, EC 7-21, and DR 1-102(A)(5)

Cases:

• People v. Hertz, 608 P.2d 335 (Colo. 1979), discipline for conduct violating the prohibition on threatening criminal charges for civil advantage
• Matter of Gelman, 230 App. Div. 524, 245 N.Y.S. 416 (1930), discipline involving such coercive conduct

Other opinions cited:

• ABA Informal Opinion C-734 (1964): threats to invoke licensing remedies to collect a debt
• CBA Formal Opinion 85: settlement of legal-malpractice claims

See also

• CBA Formal Op. 85: Settlement of Malpractice Claims
• CA Formal Op. 2012-185: Settlement and Bar Complaints
• Maine Op. 100: Threatening a Grievance in Malpractice Settlement

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: Colorado Formal Ethics Opinion 56