LACBA 1987-09-28

Is it ethical for defense counsel in a civil rights case to condition a settlement offer on the plaintiff's lawyer waiving all right to court-awarded attorney's fees?

Short answer: The committee concluded that, in civil rights and civil liberties cases, it is not ethically proper for defense counsel to condition a settlement offer on the plaintiff's counsel waiving all right to court-awarded fees, because the practice would undermine access to counsel and is prejudicial to the administration of justice.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

LACBA Ethics Opinion 445: Conditioning a Settlement on a Waiver of Statutory Attorney's Fees

Short answer: The committee concluded that, in civil rights and civil liberties cases, it is not ethically proper for defense counsel to condition a settlement offer on the plaintiff's counsel agreeing to waive all right to court-awarded attorney's fees, because the practice would seriously undermine access to counsel and amounts to conduct prejudicial to the administration of justice.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view 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. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

Federal and California fee-shifting statutes (for example, 42 U.S.C. section 1988 and Code of Civil Procedure section 1021.5) allow courts to award attorney's fees to plaintiff's counsel where the action has conferred a significant public benefit. Plaintiff's counsel in such cases is often a public-interest firm dependent on court-awarded fees, and defense counsel sometimes offers a settlement on the condition that plaintiff's counsel waive the right to those fees. The committee was asked whether it is ethically permissible for defense counsel to condition a settlement proposal on plaintiff's counsel's waiver of court-awarded fees.

The committee reviewed Evans v. Jeff D., which held that a district court was not required to reject a settlement that included a fee waiver, and surveyed opinions from other jurisdictions, noting that virtually all of them barred as unethical a settlement demand that includes a complete waiver of attorney's fees. It grounded its conclusion in California Business and Professions Code sections 6068(a), (b), and (h), which require attorneys to support the law, respect the legal system, and not reject the cause of the defenseless or oppressed, and treated those duties as analogous to former ABA DR 1-102(A)(5) and ABA Model Rule 8.4(d) (conduct prejudicial to the administration of justice).

The committee concluded that conditioning settlement on a complete fee waiver in civil rights and civil liberties cases would effectively eliminate the practice of lawyers willing to take such cases, an effect as complete as if the defendant had extracted an agreement explicitly restricting their future practice of law, which it tied to California Rule of Professional Conduct 2-109. It limited the opinion to complete fee waivers in civil rights and civil liberties cases and expressly declined to comment on partial waivers, lump-sum settlements, or simultaneous negotiation of merits and fees.

Currency note

This opinion was issued in 1987, before California adopted the former Rules of Professional Conduct (effective 1989) and before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted former California Rule 2-109, Business and Professions Code section 6068, and the ABA Code of Professional Responsibility, and relied on Evans v. Jeff D. as it then stood. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

View original opinion

Common questions

Q: Can defense counsel demand a waiver of statutory fees as a condition of settling a civil rights case?

A: Per the opinion, no. The committee concluded it is not ethically proper for defense counsel to condition a settlement offer on the plaintiff's counsel waiving all right to court-awarded fees in civil rights and civil liberties cases.

Q: Why did the committee treat a fee waiver demand as an ethics problem rather than just hard bargaining?

A: Per the opinion, because the practice would eliminate the economic basis for lawyers to take such cases, undermining access to counsel, which the committee treated as conduct prejudicial to the administration of justice and analogous to a restriction on the right to practice law.

Q: Did the opinion address partial fee waivers or lump-sum settlements?

A: Per the opinion, no. The committee expressly limited its conclusion to complete fee waivers and made no comment on partial waivers, lump-sum settlements, or simultaneous negotiation of the merits and fees.

Background and rules framework

The opinion predates the numbered California rules in their later form. It interpreted former California Rule 2-109 (restrictions on the right to practice as part of a settlement), California Business and Professions Code section 6068(a), (b), and (h), and provisions of the ABA Code of Professional Responsibility, treating ABA DR 1-102(A)(5) and ABA Model Rule 8.4(d) as the relevant prejudice-to-justice standard. Those authorities map to today's rule against restricting a lawyer's practice through settlement (Model Rule 5.6) and the misconduct rule (Model Rule 8.4).

Citations and references

Rules of Professional Conduct (as in effect at the time):

Former California Rule of Professional Conduct 2-109
ABA Code of Professional Responsibility, DR 1-102(A)(5), DR 2-106, DR 2-108, DR 2-110, DR 5-101(A); EC 2-25, EC 7-7, EC 7-8
ABA Model Rules of Professional Conduct 8.4(d)

Statutes:

42 U.S.C. section 1988
California Code of Civil Procedure section 1021.5
California Business and Professions Code section 6068(a), (b), (h)

Cases:

Evans v. Jeff D., 475 U.S. 717 (1986)
City of Riverside v. Rivera, 477 U.S. 561 (1986)
Serrano v. Unruh, 32 Cal.3d 621 (1982)

Other opinions cited:

D.C. Bar Opinion 147; Georgia State Bar Opinion 39; Maine Board of Overseers Opinion 17; Michigan Opinion C-235; New Mexico Opinion 1985-3; New York City Opinions 80-94 and 82-80; Vermont Opinion 85-3

Source

Landing page: https://lacba.org/?pg=ethics-opinions
Original PDF: https://lacba.org/docDownload/2011002