Can a lawyer condition a malpractice settlement on the client withdrawing or not pursuing a disciplinary grievance?

Plain-English summary

Bar Counsel asked about a malpractice suit by X against Attorney A. X had also filed a grievance against A, and the Grievance Commission stayed it pending the malpractice action. As the parties neared settlement, A's counsel asked for a clause under which X would 'withdraw' the grievance and not pursue it in the future. The Commission examined whether such an agreement violates the Bar Rules.

The Commission first noted the clause would accomplish little: Rule 7(g) provides that neither a complainant's refusal to cooperate nor a settlement abates a grievance. It then graded the possibilities by what X would actually be promising. If X merely agreed to inform Bar Counsel of the settlement, or to testify that it occurred, no rule is implicated. But if X agreed to express a preference that the grievance not be prosecuted, or satisfaction if it is dropped, and those statements were not entirely truthful, counsel would violate Rules 3.2(f)(3) and 3.7(e)(1)(i), which bar dishonesty and misrepresentation and require candor before a tribunal; an agreement to make such statements in exchange for settlement suggests they may be less than honest.

If the agreement went further, for example conditioning a payment on X's refusal to cooperate with the Grievance Commission, A's counsel (and perhaps A) would violate Rule 3.2(f)(1) by circumventing Rules 7(g), 7(r), and 5, which keep a grievance alive, provide for compulsory testimony, and give Bar Counsel independent investigative authority. And if the agreement required X to avoid a subpoena or change his testimony, A's attorney would appear to violate Rule 3.7(g), which forbids witness tampering.

Currency note

This opinion was issued in 1986, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer make dropping a grievance a condition of settling a malpractice claim?

A: The opinion concluded such a clause accomplishes little, because under Rule 7(g) a settlement does not abate a grievance, and depending on its terms it can violate the Bar Rules.

Q: What kinds of grievance-withdrawal promises are actually allowed?

A: The opinion concluded that an agreement merely to inform Bar Counsel of the settlement, or to testify that the settlement occurred, does not implicate any Bar Rule.

Q: What crosses the line into a rule violation?

A: The opinion concluded that agreeing to make untruthful statements of preference or satisfaction (Rules 3.2(f)(3), 3.7(e)(1)(i)), conditioning payment on refusing to cooperate with the Grievance Commission (Rule 3.2(f)(1)), or requiring the complainant to dodge a subpoena or change testimony (Rule 3.7(g)) would violate the rules.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.2(f)(3) (dishonesty and misrepresentation), Rule 3.7(e)(1)(i) (truthful means before a tribunal), Rule 3.2(f)(1) (no circumventing the Bar Rules), and Rule 3.7(g) (witness tampering), read against the disciplinary-procedure rules 7(g), 7(r), and 5. These correspond to ABA Model Rule 8.4(c) and (d) (dishonesty and conduct prejudicial to the administration of justice), Model Rule 3.4(b) and (f) (obstructing access to evidence and witnesses), Model Rule 8.4(a) (circumventing the rules), and the disciplinary-reporting concerns reflected in Model Rule 8.3.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4(c), (d) (dishonesty; conduct prejudicial to the administration of justice); Model Rule 3.4 (fairness; witnesses and evidence); Model Rule 8.3 (reporting misconduct)
• Maine Bar Rules 3.2(f)(1), 3.2(f)(3), 3.7(e)(1)(i), 3.7(g); disciplinary Rules 5, 7(g), 7(r)

Cases:

• State v. Halleck, 308 N.W.2d 56 (Iowa 1981); Committee v. Halleck, 325 N.W.2d 117 (Iowa 1982)

See also

• ABA Formal Op. 92-363: Threatening Prosecution
• Maine Ethics Op. 68: Releases and Retainer Refunds

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91107

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: January 7, 1986

Question

Pursuant to Maine Bar Rule 11(c)(1), Bar Counsel has requested an opinion concerning the following situation:

X has sued Attorney A for malpractice. X also filed a complaint concerning A's conduct with the Grievance Commission. Proceedings on the grievance were stayed by the Commission pending the outcome of the malpractice action.

Counsel for A and for X have virtually agreed upon a settlement of the malpractice litigation. Counsel for A has, however, requested a provision in the settlement agreement whereby X undertakes to 'withdraw' his pending grievance against A and not pursue that grievance at any time in the future.

Would such an agreement violate the Maine Bar Rules?

Opinion

The Bar Rules certainly do not encourage such a provision as part of a private settlement. Rule 7(g) provides that neither the refusal of a complainant to cooperate nor a settlement require abatement of a grievance proceeding. Hence, it may be doubted that the proposed agreement could accomplish very much. Nevertheless, it is not entirely clear just what X would be agreeing to do, and some versions of an agreement to 'withdraw' and 'not pursue' a grievance would clearly violate the Bar Rules.

If X will have agreed merely to inform Bar Counsel of the settlement, or even testify before the Grievance Commission that the settlement has occurred, none of the Bar Rules will be implicated. If X will have agreed to express a preference that the grievance not be prosecuted, or even mere satisfaction if it is not pursued, then we conclude that, unless these statements are entirely truthful, counsel will have violated Rules 3.2(f)(3) and 3.7(e) (1)(i). These Rules prohibit conduct involving dishonesty and misrepresentation and enjoin a lawyer to employ only such means as are consistent with truth in appearing before a tribunal. An agreement to provide this kind of statement in exchange for a settlement suggests strongly that it may be less than completely honest, e.g., see State v. Halleck, 308 N.W.2d 56, 59 (Iowa, 1981); Committee v. Halleck, 325 N.W.2d 117, 118 (Iowa 1982).

If the settlement agreement goes still further, for example, by providing for a payment to X contingent upon X's refusal to cooperate with the Grievance Commission, Counsel for A and perhaps A as well, will have violated Rule 3.2(f)(1) by circumventing Rules 7(g), 7(r) and 5. Rule 3.2 (f)(1) provides: 'A lawyer shall not . . . circumvent or subvert any provision of the Maine Bar Rules.' Rule 7(g) provides that neither a settlement nor failure of a complainant to testify abates a grievance. Rule 7(r) provides for compulsory testimony, and Rule 5 gives Bar Counsel authority to investigate allegations of misconduct on his own. Exacting an agreement not to cooperate in an investigation would seem at least to be conduct circumventing the investigation.

If the agreement purports to require X to avoid service of a subpoena or change his testimony, features not suggested by the question as stated, A's attorney would appear to be violating Rule 3.7(g), which forbids various forms of witness tampering.