Can lawyers settle a patient's civil claim against a therapist on the condition that the patient agree not to report the therapist to the licensing board?

Plain-English summary

A lawyer often represented patients with civil claims against psychotherapists with whom they had become sexually involved. Because such matters implicate the therapist's license, the defense sometimes wanted to keep the allegations confidential. The inquiry asked whether lawyers for the plaintiff and defendant could resolve such a matter where settlement was conditioned on the plaintiff agreeing not to file a complaint against the therapist with the State Board of Medical Examiners or any other licensing body.

The opinion concluded that they could not. It held it unethical for either party's attorney to participate in resolving civil claims alleging sexual involvement with patients by a psychotherapist where the settlement is conditioned on the complaining party's agreement not to report the therapist's misconduct to the appropriate licensing authority, citing Rule 1.2(d).

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a settlement require the patient not to report the therapist to the licensing board?

A: No. The opinion held it unethical for either party's lawyer to participate in a settlement of a therapist-misconduct claim conditioned on the complaining party agreeing not to report the misconduct to the licensing authority.

Q: Does it matter that the defense wants the allegations kept confidential?

A: The opinion did not turn on that desire. It barred lawyer participation where the no-report condition was the price of settlement, citing Rule 1.2(d).

Background and rules framework

The opinion applied North Carolina Rule 1.2(d), which corresponds to Model Rule 1.2(d) on a lawyer's limits in assisting a client's conduct. It treated a settlement conditioned on suppressing a report of a licensed professional's misconduct to the licensing authority as beyond what the lawyer may help bring about.

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation; subsection (d))
• North Carolina Rule 1.2(d)

See also

• NC Ethics Op. 2008 Formal Op. 15: settlement with an agreement not to report to law enforcement
• NC Ethics Op. 2019 Formal Op. 2: settlement conditions imposed by a client's ERISA plan
• NC Ethics Op. RPC 179: settlement agreement restricting a lawyer's practice

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-159/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 159 (Second Revision).

Inquiry:

Lawyer L frequently represents patients who have civil claims against psychotherapists with whom they have become sexually involved. Such matters, obviously, have implications in regard to the therapist's license and the defense sometimes wishes to keep the allegations confidential.

May attorneys for the plaintiff and the defendant participate in the resolution of such a matter where settlement is conditioned upon the plaintiff's agreeing not to file a complaint against the defendant with the State Board of Medical Examiners or any other appropriate licensing body?

Opinion:

No. It is unethical for the attorney for either party to participate in the resolution of civil claims involving allegations of sexual involvement with patients by a psychotherapist where the settlement is conditioned upon the complaining party's agreement not to report the psychotherapist's misconduct to the appropriate licensing authority. See Rule 1.2(d).