Can a New Hampshire lawyer settling a fee or malpractice dispute require the client to promise not to file a professional conduct complaint?

Plain-English summary

In a mediation of a fee and work dispute between a lawyer and a client, the lawyer insisted that, as a condition of settlement, the client agree not to file any professional conduct complaints. The opinion concludes the lawyer may not impose that condition.

The opinion acknowledges that no New Hampshire rule addresses the question directly. The closest is Rule 1.8(h), which limits a lawyer's ability to prospectively limit malpractice liability and to settle a malpractice claim with an unrepresented or former client without advising them in writing to seek independent counsel. But the opinion relies on a consistent body of authority from other courts and ethics committees holding that a fee or malpractice settlement can never be conditioned on the client's promise not to file a grievance or report misconduct, even if the lawyer believes the grievance is unjustified. The reasoning is that disciplinary rules serve a public protective purpose; as one cited decision put it, public confidence would be undermined if a lawyer could avoid discipline by purchasing a complainant's silence.

The opinion then flags a separate issue for the lawyer-mediator. Under Rule 8.3(a), a lawyer who knows another lawyer has committed a violation raising a substantial question about that lawyer's honesty, trustworthiness, or fitness must report it to the Attorney Discipline Office. The opinion notes the Rule 8.3(c) exceptions (including for information protected by Rule 1.6 confidentiality) and observes that the New Hampshire Supreme Court and Professional Conduct Committee have not yet resolved how Rule 8.3(a) applies to lawyer-mediators bound by mediation confidentiality.

In practice

The opinion concludes that a lawyer resolving a dispute with a client should not propose a release of misconduct claims, and that a settlement may not be conditioned on the client's promise not to file a professional conduct complaint. It identifies Rule 1.8(h) as the nearest rule on point and grounds the prohibition in the public-protective purpose of the disciplinary system, supported by decisions and opinions from multiple jurisdictions. It leaves open, as unresolved in New Hampshire, whether a lawyer-mediator who learns of reportable misconduct during a mediation has a Rule 8.3(a) reporting duty given mediation confidentiality.

Common questions

Q: Can a lawyer make a client promise not to file a bar complaint as part of a settlement?

A: No. The opinion concludes a lawyer may not condition settlement of a dispute with a client on the client's agreement not to file a professional conduct complaint against the lawyer.

Q: Does it matter if the lawyer thinks the potential grievance is baseless?

A: No. The opinion states, citing a Connecticut opinion, that the prohibition holds true even if the lawyer believes the grievance would be unjustified.

Q: Why are these no-complaint conditions prohibited?

A: The opinion explains that disciplinary rules serve a purpose beyond redressing an individual client's wrong; they regulate the bar and protect the public, and allowing such conditions would let lawyers buy the silence of complainants.

Q: Does a lawyer-mediator have to report misconduct learned in a mediation?

A: The opinion does not resolve this. It notes Rule 8.3(a)'s reporting duty and its Rule 8.3(c) and confidentiality exceptions, and states that New Hampshire authorities have not yet decided how the duty applies to lawyer-mediators.

Background and rules framework

The opinion interprets New Hampshire Rule 8.3 (reporting professional misconduct), including the Rule 8.3(c) exceptions, and Rule 1.8(h) (limiting liability and settling malpractice claims), read with the confidentiality duty of Rule 1.6 and the conflict rule 1.7(a). It surveys decisions and ethics opinions from several states and the ABA/BNA Lawyers' Manual, and references the New Hampshire Superior Court mediation confidentiality rule and the ABA Model Standards of Conduct for Mediators.

Citations and references

Rules of Professional Conduct:

• MR 8.3 / NH Rule 8.3(a), (c) (reporting professional misconduct)
• MR 1.8 / NH Rule 1.8(h) (limiting liability; settling malpractice claims)
• MR 1.6 / NH Rule 1.6 (confidentiality of information)
• MR 1.7 / NH Rule 1.7(a) (concurrent conflicts of interest)

Cases:

• Tessier v. Rockefeller, 162 N.H. 324, 33 A.3d 1118 (2011), cause of action where attorney broke a promise not to report misconduct
• People v. Moffitt, 801 P.2d 1197 (Colo. 1990)
• In re Freeman, 835 N.E.2d 494 (Ind. 2005), conduct prejudicial to the administration of justice
• In re Wallace, 518 A.2d 740 (N.J. 1986), purchasing the silence of complainants
• In re Goldberg, 442 N.Y.S.2d 551 (N.Y. App. Div. 1981); State ex rel. Oklahoma Bar Ass'n v. Colston, 777 P.2d 920 (Okla. 1989)

Other opinions cited:

• Arizona Op. 91-23 (1991); District of Columbia Op. 260 (1995); North Carolina Op. 84 (1988); Connecticut Informal Op. 97-13 (1997); Michigan Informal Op. RI-257 (1996)

See also

• ABA Formal Op. 04-433: Reporting Misconduct of a Non-Practicing Lawyer
• ABA Formal Op. 03-431: Duty to Report a Possibly Impaired Lawyer
• Alabama Bar Op. 1990-11: Reporting Misconduct and Bar Grievances

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2011-12-04
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/01/14142304/2011-12-04-REFORMATTED-Foregoing-Professional-Conduct-Complaints.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION
Foregoing Professional Conduct Complaints
Ethics Committee Advisory Opinion #2011-12/04

ABSTRACT:
A lawyer may not condition settlement of a dispute with a client upon the client agreeing not to
file professional conduct complaint against the lawyer.

ANNOTATIONS:
A lawyer may not condition a settlement of a dispute between the lawyer and the client upon an
agreement that the client will not file a professional conduct complaint against the lawyer.

Permitting such settlements is prohibited because the ethics rules serve a purpose beyond
rectifying a particular wrong to an individual client. The rules are designed to protect the bar and
public generally.

A question exists about whether a lawyer-mediator may be subject to discipline for failure to
report a professional conduct violation by another lawyer if the violation rises to the thresholds
set forth in NHRPC 8.3(a).

NH RULES OF PROFESSIONAL CONDUCT:
NHRPC 1.6
NHRPC 1.7(a)
NHRPC 1.8(h)
NHRPC 8.3(a)
NH ETHICS COMMITTEE OPINIONS AND ARTICLES:
See Tessier v. Rockefeller, 162 N.H. 324, 33 A.3d 1118 (2011) (court found plaintiff stated a
cause of action for fraudulent representation against attorney who broke promise not to report
attorney misconduct to the Attorney Discipline Office).

QUESTION PRESENTED:
In a settlement of a dispute between a lawyer and a client, may a lawyer condition the settlement
upon an agreement that the client will not file a professional conduct complaint against the
lawyer?

FACTS:

A lawyer-mediator is mediating a dispute between a lawyer and that lawyer’s client involving the
fees charged and the work performed by that lawyer in a matter. The lawyer and client have
generally reached agreement on the resolution of all issues. However, the lawyer insists that as a
condition of settlement, the client must agree not to file any professional conduct complaints
against the lawyer.

ANALYSIS:

It may come as a surprise that there are no rules of professional conduct that deal directly with
this issue. Perhaps the closest rule is NHRPC 1.8(h), which prohibits lawyers from prospectively
limiting a lawyer’s liability for malpractice unless the client is independently represented in
making such an agreement. It also prohibits a lawyer from settling a claim or potential claim for
malpractice liability with a former client or unrepresented client unless that person is advised in
writing of the desirability of seeking the advice of independent counsel, and is given the
opportunity to do so.

However, for those courts and ethics committees that have examined this issue, the consistent
finding is that settlement of a fee or malpractice dispute can never be conditioned on the client’s
promise not to file a grievance against the lawyer or report the lawyer’s misconduct to the
appropriate disciplinary authority. See ABA/BNA Lawyers Manual on Professional Conduct,
§51:114. See People v. Moffitt, 801 P.2d 1197 (Colo. 1990); In re Freeman, 835 N.E.2d 494
(Ind. 2005); In re Wallace, 518 A.2d 740 (N.J. 1986); In re Goldberg, 442 N.Y.S.2d 551 (N.Y.
App. Div. 1981); State ex rel. Oklahoma Bar Ass’n v. Colston, 777 P.2d 920 (Okla. 1989). See
also Arizona Ethics Op. 91-23 (1991); District of Columbia Ethics Op. 260 (1995); North
Carolina Ethics Op. 84 (1988). This position holds true even if the lawyer believes the grievance
to be unjustified. Connecticut Informal Ethics Op. 97-13 (1997).

The reasoning behind such rulings is that the ethics rules serve a purpose beyond rectifying a
particular wrong to an individual client. The rules are also designed to regulate the bar and
protect the public generally. See Michigan Informal Ethics Op. RI-257 (1996) (agreement may
not provide that disputes over lawyer’s professional conduct will be submitted to alternative
dispute resolution). See also In re Wallace, supra. (“Public confidence in the legal profession
would be seriously undermined if we were to permit an attorney to avoid discipline by
purchasing the silence of complainants.”) At least one court has characterized such conduct as
prejudicial to the administration of justice. See In re Freeman, 835 N.E.2d 494, supra. Thus, in
resolving a dispute between a lawyer and a client, the lawyer should not propose a release of
misconduct claims.

One other issue stemming from this inquiry is of note. If one of the issues in dispute involves
conduct by the lawyer proposing a release of claims which raises a substantial question as to that
lawyer’s honesty, trustworthiness or fitness as a lawyer, a question arises as to whether the
lawyer-mediator could be exposed to disciplinary action for failure to report that lawyer’s
misconduct. NHRPC 8.3(a) requires that a lawyer who knows that another lawyer has committed
a violation of the Rules of Professional Conduct which raises a substantial question as to that
lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, must report that lawyer
to the Attorney Discipline Office. The failure to do so is a professional conduct violation itself.
There are exceptions to this requirement if the information is otherwise protected by professional
conduct rules pertaining to confidentiality (NHRPC 1.6), as well as for work by lawyers on the
New Hampshire Bar Association Ethics Committee and the New Hampshire Lawyers Assistance
Committee. See NHRPC 8.3(c). However, none of those exceptions applies here. Likewise, there
are court rules and generally accepted principles concerning mediation which require that
mediators maintain the confidentiality of all information obtained in mediation unless otherwise
required by law. See e.g. ABA Model Rules of Conduct for Mediators, Standard V,
Confidentiality (adopted September 8, 2005) and Superior Court Rule 170(E)(1). As of the
issuance of this opinion, there has been no determination by the New Hampshire Supreme Court
or the Professional Conduct Committee analyzing the interplay of NHRPC 8.3(a) upon lawyer-
mediators.

CONCLUSION:

A lawyer may not condition a settlement of a dispute between the lawyer and the client upon an
agreement that the client will not file a professional conduct complaint against the lawyer.

SUBJECTS:

Confidentiality
Conflicts of Interest
Settling Malpractice Claims
Reporting Misconduct

By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors.