Can a lawyer sue a former client for defamation over a complaint the client filed with a grievance committee?

Plain-English summary

The committee was asked whether a lawyer may sue his former client for defamation based on a complaint the client filed with a local bar grievance committee. It began by noting that while lawyers are not generally prohibited from suing former clients, the ethics of the profession require lawyers to examine the validity of their position carefully and to resort to litigation to uphold personal rights only to prevent manifest injustice (N.Y. State 87 (1968); cf. DR 4-101(C)(4)). It added that lawyers have a duty to support the institutions of the bar that maintain public confidence in the profession (Canon 1, EC 1-4).

The committee emphasized the central role of grievance committees, which stand ready to hear grievances from clients, adverse parties, other lawyers, and the public. It stressed that it is important to the proper functioning of these committees that nothing interfere with informants' willingness to come forward, that their files and proceedings are veiled in secrecy, and that under New York law all relevant communications to them carry an absolute privilege (Wiener v. Weintraub, 22 N.Y.2d 330 (1968); Bein v. Lewis, 47 App. Div. 2d 538 (2d Dept. 1975)).

The committee held that where the lawyer has reason to believe the former client's statements to the committee are protected by an absolute privilege, a defamation suit could not be justified as vindicating personal rights and would only inhibit the grievance mechanism. Quoting Wiener, it noted that subjecting a complainant to a libel action could deter legitimate complaints, and that even assuming some false complaints will be made, maintaining the high standards of the bar requires a forum where clients may state complaints and have them examined. Accordingly, unless the lawyer is satisfied that the statements are not material and pertinent to the proceedings or otherwise privileged, it would be improper to sue the former client over them.

The committee added a limit: these considerations have no application to statements made outside the committee. By going outside the grievance mechanism and publicizing his grievance, a former client acts at his peril and invites whatever sanctions the law may provide.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (reporting professional misconduct is now governed by Rule 8.3 and misconduct generally by Rule 8.4). Subsequent rule amendments or later opinions may have changed the analysis, and the privilege the opinion relies on is a matter of New York law that should be checked against current authority. 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 sue a former client who filed a bar grievance against him?

A: Under this opinion, not for defamation over the grievance complaint itself where the lawyer has reason to believe the statements are absolutely privileged. The committee held such a suit would improperly chill the grievance process.

Q: What if the complaint was false or malicious?

A: The committee, quoting Wiener v. Weintraub, recognized some false complaints will be made but held that maintaining the bar's standards requires an open forum; the privilege protects even complaints later found unwarranted, so a defamation suit over them remains improper.

Q: Does the bar extend to statements the client made elsewhere?

A: No. The committee held that statements made outside the grievance mechanism are not protected by its rationale; a client who publicizes a grievance outside the committee acts at his peril.

Background and rules framework

The opinion applies Canon 1 and EC 1-4 (supporting the institutions of the bar) together with the lawyer's duty to litigate over personal rights only to prevent manifest injustice (N.Y. State 87; cf. DR 4-101(C)(4)), against the backdrop of New York's absolute privilege for grievance-committee communications. The current Model Rule analogues touch reporting misconduct (Rule 8.3) and the general misconduct provision (Rule 8.4); the privilege itself is governed by New York case law and Judiciary Law section 90(10).

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct)
• MR 8.4 (misconduct)
• NY Canon 1; EC 1-4; DR 4-101(C)(4)

Statutes:

• Judiciary Law section 90(10): confidentiality of attorney-discipline papers

Cases:

• Wiener v. Weintraub, 22 N.Y.2d 330 (1968), absolute privilege for grievance-committee complaints
• Bein v. Lewis, 47 App. Div. 2d 538 (2d Dept. 1975), same

Other opinions cited:

• N.Y. State 87 (1968): suing a former client only to prevent manifest injustice

See also

• NY State Bar Op. 483: A defamation suit against opposing counsel
• NY State Bar Op. 1032: Responding to a former client's online criticism
• NY State Bar Op. 1287: Lawyer as qui tam relator against a former client

Source

• Landing page: https://nysba.org/opinion-456/