In settling a malpractice claim, can the accused lawyer require the client to drop or not file a State Bar grievance about the lawyer's conduct?

Plain-English summary

A former client, A, brought a civil malpractice action against her former attorney, B, who hoped to settle out of court. The inquiry asked whether B could ask A, who was represented by C, to refrain from filing a grievance against B with the State Bar as a settlement term; whether C could agree not to report B; and whether, if A had already filed a grievance, B could request its withdrawal as part of the settlement.

The opinion concluded the answer to each was no. It reasoned that, for the State Bar to fulfill its responsibility to regulate the profession, persons aggrieved by or aware of apparent lawyer misconduct must feel free to transmit relevant information to the Grievance Committee, so a lawyer who attempts to dissuade a person from reporting alleged misconduct, in settlement negotiations or otherwise, engages in conduct prejudicial to the administration of justice in violation of Rule 1.2(d). As to the client's lawyer C, the opinion concluded that even though such an agreement might appear to serve the client's interest, C could not participate as an accommodation to B, because Rule 1.2(a) makes it misconduct for a lawyer to assist another lawyer in violating the Rules. Finally, the opinion explained that although a grievance cannot be withdrawn by the complainant, an accused lawyer who under any circumstances attempts to persuade a complainant or material witness not to cooperate with a misconduct investigation engages in conduct prejudicial to the administration of justice under Rule 1.2(d).

Currency note

This opinion was issued in 1990, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The misconduct provisions it applies (Rule 1.2(a) and (d)) have since been renumbered (the misconduct rule is now Rule 8.4). 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 Treat this page as historical context, not current guidance.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: Can a lawyer require a client to forgo filing a bar grievance as a settlement term?

A: No. The opinion concluded that conditioning settlement on not reporting alleged misconduct is conduct prejudicial to the administration of justice under Rule 1.2(d).

Q: Can the client's own lawyer agree to such a term to benefit the client?

A: No. The opinion concluded that the client's lawyer cannot agree as an accommodation, because assisting another lawyer's rule violation is itself misconduct under Rule 1.2(a).

Q: If a grievance is already filed, can the lawyer have it withdrawn in settlement?

A: No. The opinion explained that a grievance cannot be withdrawn by the complainant, and that pressuring a complainant or witness not to cooperate with an investigation is conduct prejudicial to the administration of justice.

Background and rules framework

The opinion applied North Carolina Rule 1.2(d) (conduct prejudicial to the administration of justice) and Rule 1.2(a) (assisting another lawyer in violating the Rules), both within the misconduct provision corresponding to Model Rule 8.4. The analysis rests on protecting the disciplinary system's access to information about lawyer misconduct, which a no-report settlement term would obstruct.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 1.2(d) (conduct prejudicial to the administration of justice)
• North Carolina Rule 1.2(a) (assisting another lawyer's rule violation)
• MR 8.4 (misconduct)

See also

• NC Ethics Op. RPC 159: settlement conditioned on not reporting to a licensing board
• NC Ethics Op. RPC 127: conditional delivery of settlement proceeds

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-84/

Original opinion text

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

Inquiry #1:

A has brought a civil malpractice action against her former attorney, B. B hopes to settle the matter out of court. May B ask A, who is represented by C, to refrain from filing a grievance against B with the North Carolina State Bar as a provision of the settlement of the underlying civil malpractice action?

Opinion #1:

No. In order for the North Carolina State Bar to fulfill its responsibility to regulate the legal profession, it is imperative that persons who are aggrieved by apparent lawyer misconduct or who have otherwise become aware of such misconduct feel free to transmit relevant information to the Grievance Committee for investigation. A lawyer who attempts to dissuade a person from reporting his or her alleged misconduct in the course of settlement negotiations or in any other context would be engaging in conduct prejudicial to the administration of justice in violation of Rule 1.2(d) of the Rules of Professional Conduct.

Inquiry #2:

May C in the context of such a settlement also agree not to report B?

Opinion #2:

No. Even though such an agreement might appear to be in the client's best interest, C cannot participate as an accommodation to B. Rule 1.2(a) provides that it is misconduct for a lawyer to assist another lawyer to violate the Rules of Professional Conduct. As was mentioned above, B may not ethically condition settlement upon an agreement that his misconduct not be reported.

Inquiry #3:

If A has already filed a grievance with the North Carolina State Bar before the civil malpractice action is settled, may attorney B request that the grievance be withdrawn as a part of the settlement of the malpractice action? Would the answer be different if A was not represented by independent counsel in the malpractice action?

Opinion #3:

Although a grievance cannot be withdrawn by the complainant, an accused lawyer would be engaging in conduct prejudicial to the administration of justice in violation of Rule 1.2(d) if he or she should, under any circumstances, attempt to persuade a complainant or a material witness not to cooperate with an investigation of alleged misconduct.