Can a West Virginia lawyer make settling a civil case conditional on the other side withdrawing its bar disciplinary complaint?

Plain-English summary

LEI 88-03 addressed the situation where a person who has filed a bar disciplinary complaint (or a witness) also has a potential civil claim against the same attorney. The question was whether the attorney could, as a condition of settling that civil action, require the complainant to ask the disciplinary committee to drop the ethics complaint or to stop cooperating with it.

The Committee concluded that an attorney may not do so. It reasoned that the disciplinary process exists to protect the public, not to satisfy an individual complainant, so a private settlement cannot be allowed to circumvent the Committee's duty. The opinion grounded this in DR 1-103(A), the duty to report disciplinary violations, and in the West Virginia Supreme Court of Appeals' holding in Committee on Legal Ethics of The West Virginia State Bar v. Smith, 194 S.E.2d 665 (W. Va. 1973), that once alleged attorney misconduct comes to the Committee's attention, "it must pursue it."

The Committee added that a complainant's agreement to withdraw a complaint, oral or written, is not binding on the Committee; Bar Counsel may continue and prosecute the complaint, using subpoena power if needed. It characterized an offer to "drop" a complaint as potentially "tantamount to blackmail," because it could pressure a lawyer into settling a civil action the lawyer would not otherwise settle, and stated that a complainant does not and should not have authority to make such an offer.

Currency note

This opinion was issued in 1988, before West Virginia replaced its Code of Professional Responsibility (the "DR" rules cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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 Treat this page as historical context, not current guidance.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: Could a West Virginia lawyer ask a complainant to drop a bar complaint as part of a settlement?

A: No. The opinion concluded that requiring an ethics complainant or witness to withdraw the complaint as a condition of settling a parallel legal action was an unethical practice, "whether or not the 'condition of settlement' is agreed upon orally or in writing."

Q: If the complainant agreed to withdraw, did the disciplinary committee have to honor it?

A: No. The opinion stated that such a request for withdrawal was not binding on the Committee, that Bar Counsel could continue and prosecute the complaint using subpoena power, and that the Committee would not automatically honor requests to drop complaints regardless of which party initiated the agreement.

Q: Why did the opinion treat this as serious?

A: The Committee reasoned that disciplinary processes protect the public rather than punish an individual, relied on the Smith decision that the Committee must pursue misconduct once it learns of it, and observed that an offer to drop a complaint "may be tantamount to blackmail."

Background and rules framework

The opinion interpreted DR 1-103(A) of the then-current Code of Professional Responsibility, which required a lawyer possessing unprivileged knowledge of a disciplinary-rule violation to report that knowledge to a tribunal or authority empowered to act on lawyer conduct. The reporting duty is carried forward in substance by Rule 8.3 of the later Rules of Professional Conduct, though the opinion itself cites only the DR provision. The opinion also relied on the West Virginia Supreme Court of Appeals' decision in Smith and cited In re Harris, 88 N.J.L. 18, 95 A. 761 (Sup. Ct. 1915), for the treatment of post-complaint restitution as, at most, a mitigating circumstance.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 1-103(A) (duty to report disciplinary-rule violations)

Cases:

• Committee on Legal Ethics of The West Virginia State Bar v. Smith, 194 S.E.2d 665 (W. Va. 1973), Committee must pursue misconduct once it comes to its attention
• In re Harris, 88 N.J.L. 18, 95 A. 761 (Sup. Ct. 1915), post-complaint restitution as a mitigating circumstance

See also

• ABA Formal Op. 04-433: Reporting misconduct of a non-practicing lawyer
• NY State Bar Op. 854: Reporting a known or suspected rule violation

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ec87f336f8e49ff06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEI - 88-03

Settlement Agreements Requiring Complainants to Withdraw Ethics Complaint

FACTS

It has come to the Committee's attention that, when a complainant or other witness in a disciplinary action also has a potential civil action against an attorney, the attorney may attempt to settle the civil action, and as a condition of settlement, may attempt to require the complainant or witness to request the Committee to drop the ethics complaint or not cooperate with the Committee in pursuing the complaint.

ISSUE

May an attorney request, require or agree to withdrawal of an ethics complaint or potential ethics complaint, as a condition of settlement of a parallel or underlying legal action against him?

DISCUSSION

Disciplinary processes are intended to protect the public, not punish an individual. Although an individual complainant may be satisfied by a settlement in parallel or underlying litigation, the interests of the public will not be served by the circumvention of the Committee's duty and function.

DR 1-103(A) states that "A lawyer possessing unprivileged knowledge of a (disciplinary rule) violation shall report such knowledge to a tribunal or other authority empowered to investigate or act upon the conduct of lawyers . . ." The spirit of that disciplinary rule suggests that no lawyer should be involved in a dismissal of an ethics complaint if a tribunal has a continuing interest in the matter. But even more binding upon the Committee is the holding by the West Virginia Supreme Court of Appeals in Committee on Legal Ethics of The West Virginia State Bar v. Smith, 194 S.E.2d 665 (W.Va. 1973), in which the Court held that "Once alleged misconduct on the part of an attorney has come to the attention of the Committee, it must pursue it. . .".

Other jurisdictions have most often addressed this issue in the context of the attorney making restitution to the complainant in return for the complainant's agreement to withdraw his ethics complaint. Restitution made after disciplinary proceedings have been commenced has been called the "honesty of compulsion" (In re Harris, 88 N.J.L. 18, 22-23, 95 A.761, 762 (Sup.Ct. 1915) (en banc); it has traditionally been considered a mitigating circumstance, at most, in disciplinary proceedings. The Committee will not terminate disciplinary proceedings based upon these "conditions of settlement" but may direct Counsel to proceed with disciplinary procedures, in spite of attempts by a complainant to withdraw his complaint.

Additionally, the Committee finds that requiring an ethics complainant or witness to withdraw his or her complaint as a condition for settlement of a parallel legal action is an unethical practice. This is true whether or not the "condition of settlement" is agreed upon orally or in writing. Such a request for withdrawal is not binding on the Committee and the complaint may be continued by Bar Counsel, and prosecuted by using subpoena power.

This holding by the Committee is for the protection of both the lawyer and the public. An offer that a complainant or witness will "drop" an ethics complaint may be tantamount to blackmail; it may force the lawyer to settle a civil action when he would not otherwise do so. The complainant does not, and should not, have the authority to make such an offer.

Holding

An attorney who requests or enters into an agreement to have one or more ethical complaints against him or her "dropped" by the complainant in exchange for money, may be considered by the Committee to have committed a separate and distinct ethical violation. The Committee will not automatically honor requests of complainants or witnesses to drop ethics complaints against attorneys, because of agreements to do so, written or oral, regardless of which party initiates such agreement.

Arthur M. Recht, Chairman
Committee on Legal Ethics