Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


Resolving Fee or Alleged Malpractice Claims with Clients Requires Attorneys to Carefully Address Issues Regarding Complaints to the State Bar

Business and Professions Code section 6090.5 provides “(a) It is cause for suspension, disbarment, or other discipline for any member, whether as a party or as an attorney for a party, to agree or seek agreement, that: (1) The professional misconduct or the terms of a settlement of a claim for professional misconduct shall not be reported to the disciplinary agency.”  

The State Bar Standing Committee on Professional Responsibility and Conduct (“COPRAC”) issued Formal Opinion No. 2012-185 to address whether “In settling a dispute with a former client, may an attorney seek: (1) the former client’s written representation that no State Bar complaint has been filed; (2) the former client’s representation that he or she has no present intention to file a State Bar complaint; (3) the former client’s written contractual agreement not to file a State Bar complaint against the attorney based on matters relating to or arising out of the representation; or (4) the former client’s oral agreement not to file a State Bar complaint against the attorney based on matters relating to or arising out of the representation?” (http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-185%20%2812-21-12%29.pdf)

The opinion determined that the statute’s use of the word “seek agreement” may encompass factual recitations in the settlement agreement that the client has not filed a State Bar complaint, or concerning the client’s future intentions regarding filing a State Bar complaint. Section 6090.5 may prohibit these types of recitations because they could produce an impermissible chilling effect on the client’s future filing of a State Bar complaint. If a lawyer seeks an oral or written agreement to not file a State Bar complaint, withdrawal of that request does not cure the ethical violation.

Although not binding, the opinion provides notice to attorneys regarding their negotiations with current or former clients and should be carefully considered to avoid discipline.  The foregoing necessitates every attorney ensure they conduct themselves in compliance with ethical restrictions in negotiations with current or former clients.

-- Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**