Can North Carolina lawyers, or a lawyer serving as mediator, agree to a settlement term that prohibits the parties from filing a State Bar grievance against the lawyers?

Plain-English summary

The opinion addresses settlement terms that would prohibit the parties or their lawyers from filing a grievance with the North Carolina State Bar against the lawyers involved in a dispute. Building on RPC 84, the committee concludes that a lawyer may not condition a settlement on an agreement not to report lawyer misconduct, because the State Bar can regulate the profession only if aggrieved persons feel free to bring information to the Grievance Committee. A lawyer who tries to dissuade someone from reporting alleged misconduct, in settlement negotiations or any other context, engages in conduct prejudicial to the administration of justice under Rule 8.4(d) (the conduct RPC 84 analyzed under former Rule 1.2(d)). So neither lawyer in the inquiry may suggest, demand, or agree to a term prohibiting the lawyers and parties from filing a grievance.

The opinion then applies the same principle to a lawyer serving as a mediator. The Preamble makes clear a lawyer is subject to the Rules of Professional Conduct even when serving as a third-party neutral, and Rule 8.4(a) makes it misconduct to knowingly assist or induce another to violate the rules or to do so through the acts of another. A mediator who acts as scribe for the prohibited term, carries it in writing between the parties, or transmits it verbally is knowingly assisting the lawyers' violation and so violates Rules 8.4(a) and 8.4(d); the form of assistance does not matter. A mediator's ignorance of the rules and opinions is not a defense, because every lawyer is responsible for observing the Rules of Professional Conduct.

On reporting, the opinion distinguishes the mediator's duty under Rule 8.3. A lawyer-mediator is also bound by the North Carolina Standards of Professional Conduct for Mediators, which require keeping mediation information confidential. Rule 8.3(e) provides that a lawyer-mediator is not required to disclose information learned during a mediation if the Standards do not allow disclosure, and must report if the Standards do allow it. As of the opinion's date, the Standards do not permit such disclosure, so the mediator is not required to report under Rule 8.3(a) (that would change if the Standards were amended). Even without a reporting duty, the mediator still may not assist a rules violation; if the lawyers insist on the prohibited term, the mediator should consider warning the lawyers, suggesting they seek ethics advice or providing a copy of the opinion, and ultimately must withdraw from the mediation if the parties do not abandon the term.

In practice

Under this opinion, the conduct each inquiry addresses is governed by existing rules. A settlement term prohibiting a grievance against the lawyers involved is conduct prejudicial to the administration of justice; lawyers may not suggest, demand, or agree to it (Rule 8.4(d); RPC 84). A lawyer serving as a mediator may not draft, scribe, carry, or verbally transmit such a term, because doing so knowingly assists the lawyers' violation (Rule 8.4(a)), and ignorance of the rules is not an excuse (Preamble [16]). Whether a lawyer-mediator must report the lawyers under Rule 8.3 turns on the Standards of Professional Conduct for Mediators: Rule 8.3(e) excuses disclosure when the Standards do not permit it, and as of the opinion's date the Standards do not. The opinion states that, regardless of any reporting duty, a mediator must withdraw from the mediation if the lawyers or parties insist on including the prohibited term.

Common questions

Q: Can a settlement agreement in North Carolina include a promise not to file a State Bar grievance against the lawyers?

A: No. Opinion #1 concludes a lawyer may not suggest, demand, or agree to a settlement term prohibiting the lawyers and parties from filing a grievance with the State Bar, because conditioning settlement on not reporting misconduct is prejudicial to the administration of justice under Rule 8.4(d) (citing RPC 84).

Q: Can a lawyer acting as a mediator write up or pass along a no-grievance term the parties' lawyers agreed to?

A: No. Opinions #2 through #4 conclude that whether the mediator scribes the term, carries it in writing between the parties, or transmits it verbally, the mediator is knowingly assisting the lawyers' violation of the rules in violation of Rules 8.4(a) and 8.4(d); the form of assistance does not matter.

Q: Is a mediator off the hook if she did not know the no-grievance term was improper?

A: No. Opinion #5 concludes that ignorance of the rules is no excuse, because every lawyer is responsible for observing the Rules of Professional Conduct, and a lawyer serving as a mediator is required to have at least a general knowledge of them.

Q: Does a lawyer-mediator have to report the lawyers who included the no-grievance term?

A: Not necessarily. Opinion #6 concludes that under Rule 8.3(e) a lawyer-mediator need not disclose misconduct learned during a mediation if the Standards of Professional Conduct for Mediators do not permit disclosure, and as of the opinion's date the Standards do not. If the Standards were amended to allow disclosure, the duty to report under Rule 8.3(a) would apply.

Q: What should the mediator do when the lawyers push the no-grievance term?

A: Per Opinion #7, the mediator should consider telling the lawyers directly that the term violates the rules, suggesting they seek State Bar ethics advice or providing a copy of the opinion, and explaining that her own obligations bar further participation; if the lawyers or parties will not drop the term, the mediator must withdraw from the mediation.

Background and rules framework

The opinion interprets North Carolina Rule 8.4(d) (conduct prejudicial to the administration of justice), Rule 8.4(a) (violating the rules through the acts of another or knowingly assisting another's violation), Rule 8.3(a) and Rule 8.3(e) (the duty to report misconduct, and its modification for a lawyer serving as a mediator who is bound by the Standards of Professional Conduct for Mediators), and the Preamble's statement that a lawyer remains subject to the rules when serving as a third-party neutral (citing Rules 1.12 and 2.4). RPC 84 originally analyzed the no-reporting condition under former Rule 1.2(d), now codified as Rule 8.4(d). These correspond to ABA Model Rules 8.4, 8.3, 1.2, and 2.4. The opinion also references the North Carolina Supreme Court Standards of Professional Conduct for Mediators (2023), which are separate from the Rules of Professional Conduct.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / NC Rule 8.4(a), 8.4(d) (misconduct; assisting violations; conduct prejudicial to the administration of justice)
• Model Rule 8.3 / NC Rule 8.3(a), 8.3(e) (reporting misconduct; lawyer-mediator modification)
• Model Rule 1.2 / NC former Rule 1.2(d) (the basis of RPC 84, now codified as Rule 8.4(d))
• Model Rule 2.4 / NC Rule 2.4 (lawyer serving as third-party neutral)
• NC Rules of Professional Conduct, Preamble [3], [16]

Other authorities:

• North Carolina Supreme Court Standards of Professional Conduct for Mediators (2023), Standard 3, Standard 6

Other opinions cited:

• RPC 84 (a lawyer may not condition settlement of a civil dispute on an agreement not to report lawyer misconduct)

See also

• CA COPRAC Op. 2012-185: Settlement and State Bar Complaint Suppression
• DC Bar Op. 276: Lawyer-Mediator Conflicts Check
• ABA Formal Op. 06-439: Truthfulness in Negotiation and Mediation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2025-formal-ethics-opinion-2/

Original opinion text

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

Inquiry #1:

Lawyer A and Lawyer B represent Client A and Client B, respectively. Throughout the dispute and representation, the interaction between the parties and their respective counsel has been tense and difficult, including accusations from both parties of alleged misconduct by counsel. The parties, however, have agreed to pursue resolution of their dispute prior to trial and have instructed counsel to negotiate a settlement agreement. While discussing settlement terms, Lawyer A informs Lawyer B that Client A is exploring whether to file a grievance complaint against Lawyer B with the North Carolina State Bar, but that Client A would be willing to disregard a potential grievance complaint if Lawyer B and Client B agree to pay a larger monetary amount to Client A in the settlement. Lawyer B responds by suggesting that the settlement terms include a provision prohibiting both Clients A and B as well as Lawyers A and B from filing a grievance complaint with the North Carolina State Bar against either lawyer. All involved agree with this term.

May Lawyer A and Lawyer B suggest and agree to the settlement term prohibiting the lawyers and their represented parties from filing a grievance complaint with the North Carolina State Bar against the lawyers involved?

Opinion #1:

No.

The Ethics Committee has previously stated that, “an attorney may not condition settlement of a civil dispute on an agreement not to report lawyer misconduct.” RPC 84. The opinion provides,

In order for the North Carolina State Bar to fulfill its responsibility to regulate the legal profession, it is imperative that persons who are aggrieved by apparent lawyer misconduct or who have otherwise become aware of such misconduct feel free to transmit relevant information to the Grievance Committee for investigation. A lawyer who attempts to dissuade a person from reporting his or her alleged misconduct in the course of settlement negotiations or in any other context would be engaging in conduct prejudicial to the administration of justice in violation of Rule 1.2(d) [currently codified as Rule 8.4(d)] of the Rules of Professional Conduct.

Id.

Permitting lawyers to participate in a settlement agreement whereby the lawyers involved negotiate and agree to a term that prohibits an individual from reporting misconduct to the State Bar undermines and threatens the legal profession’s ability to carry out the critically important responsibility and privilege of self-regulation. Accordingly, Lawyers A and B cannot suggest, demand, or agree to a settlement term prohibiting the lawyers and parties involved in a dispute from filing a grievance with the North Carolina State Bar.

Inquiry #2:

Attorney mediator (Mediator) was designated to mediate a court-ordered mediation. The parties and their respective lawyers were present at the mediation. While Mediator caucuses with each party and their lawyers, Mediator took private notes on paper of the settlement terms being discussed. One of the terms to be included in the mediated settlement agreement (agreement) was proposed by one of the lawyers and provides that no party shall file a grievance complaint against any lawyer involved in the case, based on a claim arising out of the current cause of action, with the lawyer’s regulatory agency, i.e., the North Carolina State Bar. The lawyers asked Mediator to act as a scribe for the agreement and commit to writing the agreed upon terms.

Is Mediator in violation of the Rules of Professional Conduct by acting as a scribe and committing to writing the term prohibiting the filing of a grievance complaint with the State Bar?

Opinion #2:

Yes. The Preamble to the Rules of Professional Conduct emphasizes that a lawyer is subject to the Rules of Professional Conduct when a lawyer serves “as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4.” Preamble [3]. In essence, the Preamble indicates that, unless otherwise noted, a licensed lawyer is always subject to the requirements of the Rules of Professional Conduct regardless of the capacity in which the lawyer is acting. To maintain the privilege and ability to self-govern, all lawyers have a professional obligation to adhere to the Rules of Professional Conduct. Lawyers who serve as a third-party neutral, including mediators, are not excused from such obligations. Additionally, Rule 8.4(a) states that it is misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”

A settlement term that prohibits a party from filing a grievance complaint against any lawyer involved in the case interferes with the profession’s ability to regulate itself and is therefore conduct prejudicial to the administration of justice. See Rule 8.4(d); Opinion #1. Although Mediator was not the one to propose the language, it is professional misconduct for the mediator to knowingly assist the lawyers involved in the mediation to violate the Rules of Professional Conduct. Rule 8.4(a). Because lawyers cannot negotiate away the filing of a grievance complaint with the State Bar, Mediator is professionally obligated to avoid assisting the lawyers with negotiating a settlement term that prohibits a party from reporting one or more of the lawyers to the State Bar.

Inquiry #3:

Same scenario as #2 above, except one of the lawyers involved in the mediation drafted the agreement. The drafting lawyer provided Mediator with a copy of the agreement to review with all the parties.

Is Mediator in violation of the Rules of Professional Conduct by taking the term prohibiting the filing of a grievance complaint with the State Bar, in writing, back and forth between the parties while working toward a resolution?

Opinion #3:

Yes. See Opinions #1 & #2.

Inquiry #4:

Same scenario as #2 above, except Mediator did not take notes, but only verbally transmitted the settlement terms, including the agreement not to report any lawyer to the State Bar, between the parties.

Is Mediator in violation of the Rules of Professional Conduct by verbally transmitting the term prohibiting the filing of a grievance complaint with the State Bar between the parties while working toward a resolution?

Opinion #4:

Yes. See Opinions #1 & #2. Whether Mediator shares the settlement terms in writing or verbally is immaterial. Mediator may not violate the Rules of Professional Conduct through the acts of another and may not knowingly assist another in violating the Rules of Professional Conduct. Participating in or facilitating the inclusion of a term that is prohibited by the rules as described in this scenario constitutes a violation of Rule 8.4(a) and is prejudicial to the administration of justice. Rule 8.4(d).

Inquiry #5:

Same scenarios as Opinions #2, #3, and #4. Mediator is unaware of the rules and ethics opinions and does not know the term prohibiting the filing of a grievance complaint with the State Bar is a violation of the Rules of Professional Conduct. Under these circumstances, will Mediator be in violation of the Rules of Professional Conduct if the term is included in the agreement?

Opinion #5:

Yes. Although the Standards of Professional Conduct for Mediators do not require mediators to know the law relative to the issue in dispute, it is well settled that “[e]very lawyer is responsible for observance of the Rules of Professional Conduct[;]” therefore, lawyers are expected to have at least a general knowledge of the rules. Preamble [16]. Lawyers acting as mediators are not exempt from this expectation and are required to have a basic understanding of the Rules of Professional Conduct. Ignorance of the rules is no excuse.

Inquiry #6:

Same scenario as Opinions #2, #3, and #4; except the parties do not reach a resolution at the mediation but did discuss with Mediator the inclusion of a term in the agreement to not report any lawyer to the State Bar. The parties and their lawyers subsequently signed the agreement—including the aforementioned term regarding reporting any lawyer to the State Bar—two days later outside the presence of Mediator. Mediator subsequently learned of the agreement and the inclusion of the problematic term regarding reporting any lawyer to the State Bar.

Does Mediator have a duty to report the lawyers’ professional misconduct to the State Bar regarding their inclusion of a term in the agreement to not report any lawyer to the State Bar?

Opinion #6:

No, unless the Standards of Professional Conduct for Mediators permit disclosure of the lawyers’ misconduct.

Rule 8.3 requires a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects [to]...inform the North Carolina State Bar or the court having jurisdiction over the matter.” Rule 8.3(a). However, Rule 8.3 recognizes that a lawyer who is serving as a mediator is also subject to the Standards of Professional Conduct for Mediators (the Standards), including the requirement to keep information learned during a mediation confidential. Std. 3, N.C. Stds. of Prof’l Conduct for Mediators (2023); see also Rule 8.3, cmt. [7] (a lawyer-mediator is required by the Standards “to keep confidential the statements and conduct of the parties and other participants in the mediation, with limited exceptions, to encourage the candor that is critical to the successful resolution of legal disputes.”). As of the date of this opinion, the Standards do not permit a mediator to disclose information concerning a lawyer’s professional responsibility that is learned during mediation. Consequently, Rule 8.3(e) sets out a different requirement concerning a lawyer-mediator’s duty to report the professional misconduct of lawyers that is learned of during mediation:

A lawyer who is serving as a mediator and who is subject to the North Carolina Supreme Court Standards of Professional Conduct for Mediators (the Standards) is not required to disclose information learned during a mediation if the Standards do not allow disclosure. If disclosure is allowed by the Standards, the lawyer is required to report professional misconduct consistent with the duty to report set forth in [Rule 8.3(a)].

Rule 8.3(e). As noted in the comment, “if the Standards allow disclosure, a lawyer serving as a mediator who learns of or observes conduct by a lawyer that is a violation of the Rules of Professional Conduct is required to report consistent with the duty set forth in paragraph (a) of this Rule.” Rule 8.3, cmt. [7].

Accordingly, if the Standards do not permit Mediator to disclose the professional misconduct of lawyers learned of during mediation, Mediator is not required to disclose the professional misconduct pursuant to Rule 8.3(a). If the Standards are amended to permit Mediator to report professional misconduct by lawyers that is learned of during mediation, Mediator would have a duty to report the lawyers’ professional misconduct pursuant to Rule 8.3(a).

Inquiry #7:

Although Mediator may not have a duty to report the lawyers to the State Bar pursuant to Rule 8.3(e) for their inclusion in the agreement of a term to not report any lawyer to the State Bar, what additional action, if any, should Mediator take in response to the parties’ and lawyers’ suggestion to include or inclusion of the problematic term in the agreement?

Opinion #7:

Presuming the Standards do not permit disclosure of the lawyers’ misconduct and Mediator does not have a duty to report the lawyers to the State Bar (see Opinion #6 above), Mediator retains the duty to not violate the Rules of Professional Conduct through the acts of another and to not knowingly assist another in violating the Rules of Professional Conduct. Rules 8.4(a), 8.4(d); see Opinions #2-4. To meet this professional responsibility, Mediator “should consider withdrawing from the mediation or taking such other action as may be required by the Standards” if the lawyers insist on conduct during the mediation that violates the Rules of Professional Conduct. Rule 8.3, cmt. [7]. Such other action may include informing the lawyers directly that the proposed term violates the Rules of Professional Conduct,1 suggesting the lawyers contact the State Bar for ethics advice providing the lawyers with a copy of this opinion, or explaining that Mediator’s own obligations under the Rules of Professional Conduct prohibit further participation in the mediation and shall require withdrawal if the lawyers or parties insist on including the term in future negotiations or draft agreements. If the lawyers or parties do not discontinue discussion or inclusion of the term in their settlement agreement, Mediator must withdraw from the mediation. Id.

Endnote

1. The Ethics Committee recognizes that Standard #6 of the Standards of Professional Conduct for Mediators (2023) prohibits a mediator from providing “legal advice or other professional advice during the mediation.” Whether this prohibition in the Standards permits a lawyer-mediator to opine on another lawyer-participant’s professional responsibility in a mediation is outside of the scope of the Rules of Professional Conduct. However, the Ethics Committee also recognizes that a lawyer—serving as a mediator or any third-party neutral—has a duty to advance and uphold the integrity of the legal profession and the administration of justice, which includes a lawyer’s obligation to not undermine the self-regulating nature of the legal profession. Warning or educating other lawyers regarding their professional misconduct during mediation serves the public interest, the legal profession, and the administration of justice.