Can a lawyer condition a settlement on the client agreeing not to file, or to withdraw, an ethics grievance against the lawyer?

Plain-English summary

The Committee was asked whether an attorney may seek or agree, as a condition of settling an underlying dispute, that the client not file an ethics grievance about the attorney's conduct in the matter. The Committee concluded that such an agreement is prejudicial to the administration of justice and violates RPC 8.4(d), and that an agreement conditioned on withdrawing a grievance already filed would violate the Rule for the same reason.

The Committee reasoned that attorney discipline is not a private cause of action or private remedy that can be negotiated between the attorney and the aggrieved party. The discipline process furthers public, not private, interests; quoting In re Wilson, its purpose is "to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general." A demand to forgo or withdraw a grievance thwarts the disciplinary system's principal purpose and, the Committee noted, such agreements are against public policy and presumably unenforceable.

The Committee distinguished RPC 1.8(h), which the inquirer thought relevant. That Rule allows an attorney to settle a legal-malpractice claim with a client only if the client is represented or advised to obtain independent counsel, but a malpractice settlement is a purely private matter. Because disciplinary charges concern public interests, the Committee held discipline may not be the subject of private negotiation between attorney and client, even when the client is represented by independent counsel.

In practice

The opinion holds that, under RPC 8.4(d), a lawyer may not condition settlement of an underlying dispute on the client's agreement to refrain from filing, or to withdraw, an ethics grievance about the lawyer's conduct. Per the opinion, this differs from settling a malpractice claim under RPC 1.8(h): a malpractice settlement is a private matter that may be resolved with proper safeguards, but the disciplinary process is public and cannot be bargained away, even with independent counsel for the client. The Committee observed that such grievance-waiver terms are also against public policy and presumably unenforceable.

Common questions

Q: Can a lawyer ask a client to promise not to file an ethics grievance as part of a settlement?

A: No. The Committee held that such a condition violates RPC 8.4(d) as prejudicial to the administration of justice.

Q: What about agreeing to withdraw a grievance the client already filed?

A: That is also prohibited. The Committee held an agreement conditioned on withdrawing a filed grievance equally violates RPC 8.4(d).

Q: Does it matter that the client has independent counsel, as RPC 1.8(h) would require for a malpractice settlement?

A: No. The Committee distinguished malpractice settlements as private matters; because discipline serves public interests, it may not be privately negotiated even when the client is represented.

Background and rules framework

The opinion applies RPC 8.4(d) (conduct prejudicial to the administration of justice; the analogue is Model Rule 8.4(d)) and distinguishes RPC 1.8(h) (settling malpractice claims with a client; Model Rule 1.8(h)). It grounds the public-interest rationale in In re Wilson.

Citations and references

Rules of Professional Conduct:

• RPC 8.4(d) (conduct prejudicial to the administration of justice); cf. Model Rule 8.4(d)
• RPC 1.8(h) (settling a malpractice claim with a client); cf. Model Rule 1.8(h)

Cases:

• In re Wilson, 81 N.J. 451 (1979), purpose of attorney discipline is to preserve public confidence

See also

• NJ ACPE Op. 714: Conditioning a Plea on a Civil-Liability Release
• NJ ACPE Op. 347: Threatening Criminal Prosecution to Aid a Civil Action

Source

• Landing page: https://www.njcourts.gov/sites/default/files/notices/2011/06/n110624i.pdf
• Original PDF: https://www.njcourts.gov/sites/default/files/notices/2011/06/n110624i.pdf

Original opinion text

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

Issued by ACPE June 22, 2011

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 721

Agreement as Condition of Settlement That Client Refrain From Filing an Attorney Ethics Grievance or Withdraw a Grievance Already Filed

The Advisory Committee on Professional Ethics received an inquiry asking whether an attorney may seek or agree, as a condition of settlement of an underlying dispute, that the client not file an ethics grievance with regard to conduct of the attorney in the matter. The Committee finds that such an agreement is prejudicial to the administration of justice and, accordingly, violates Rule of Professional Conduct 8.4(d). An agreement conditioned on the withdrawal of a grievance already filed similarly would violate Rule of Professional Conduct 8.4(d).

Attorney discipline is not a private cause of action or private remedy for misconduct that can be negotiated between an attorney and the aggrieved party. The discipline process furthers public, not private interests: it is not intended to punish the attorney or vindicate the aggrieved party but, rather, "to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general." In re Wilson, 81 N.J. 451, 456 (1979).

Rule of Professional Conduct 8.4(d) provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." A demand, as a condition of settlement of an underlying dispute, that the client refrain from filing an ethics grievance or withdraw a grievance already filed is prejudicial to the administration of justice because it thwarts the disciplinary system from serving its principal purpose of preserving the confidence of the public in the integrity and trustworthiness of attorneys. Such agreements are also against public policy and, presumably, are unenforceable.

Inquirer suggested that Rule of Professional Conduct 1.8(h) may be relevant to the analysis. Rule of Professional Conduct 1.8(h) prohibits an attorney from settling a claim for legal malpractice with a client who is not represented by counsel and has not been advised to obtain independent counsel. The attorney negotiating disposition of a malpractice claim with a client is settling a purely private matter. As noted above, disciplinary charges concern public, not private, interests. Discipline may not be the subject of private negotiation between the attorney and client, even when the client is represented in the negotiation by independent counsel.

Accordingly, an attorney may not seek or agree, as a condition of settlement of an underlying dispute, that the client not file an ethics grievance with regard to conduct of the attorney in the matter or withdraw a grievance already filed. Such an agreement is prejudicial to the administration of justice and, accordingly, violates Rule of Professional Conduct 8.4(d).