A Loose End You Can't Tie Up
We lawyers try to write all-encompassing proposed orders, settlement agreements and contracts, envisioning all the potential unanswered questions, complications, hanging chads and loose ends.
But there is one loose end we have to live with: the possibility that someone will complain to the State Bar.
Because it’s never OK to ask an opposing counsel not to complain, and it’s never OK to ask the client not to complain.
Why? Because we are a self-regulating profession, with rules that require us to report the serious misconduct of other lawyers and rules that prohibit us from making agreements with clients limiting their rights to report us, engaging in misconduct through the acts of another and engaging in conflicts of interests with our clients. A 1991 Arizona ethics opinion put it this way: “As a matter of public policy, every lawyer must be accountable for his misconduct, and should not be able to contract his way out of it.”
Asking another lawyer not to file a bar charge
If one lawyer tries to get another lawyer to agree not to file a bar charge, that conduct would violate ER 8.4(a), which prohibits a lawyer from violating or attempting to violate the rules, knowingly assisting or inducing another to do so, or doing so through the acts of another. In short, because the second lawyer can’t ethically agree not to comply with ER 8.3(a) reporting duties, the first lawyer would be knowingly assisting or inducing the second lawyer to violate the rules.
And it could violate ER 8.4(d), which prohibits conduct prejudicial to the administration of justice.
Also, it could possibly violate ER 1.7, which prohibits conflicts of interests. If the request is part of a civil settlement for a client, now the lawyer’s personal interests, not just the client’s interests, are at stake.
For example, in Ariz. Ethics Op. 90-06, two franchisees retained the inquiring lawyer to investigate potential claims of franchise fraud and to negotiate to have the franchisor-corporation buy back their franchises. When the inquiring lawyer couldn’t negotiate a settlement, the franchisees hired another lawyer to litigate the matter. The parties eventually reached a settlement. The lawyers for the franchisor-corporation advised their client not to execute the settlement agreement unless it contained, among other provisions, a requirement that the parties dismiss any bar complaints they had made against any of the lawyers representing any of the parties. The inquiring lawyer, although not involved in the negotiations, was to be a signatory to the settlement agreement.
The Ethics Committee concluded that the inquiring lawyer could not ethically sign the settlement agreement because he could not abrogate his mandatory duty to report misconduct under ER 8.3. He could not agree
to not file any Bar complaints against the attorneys for [franchisor-corporation] to the extent the agreement would run afoul of his obligations to report misconduct…. Obviously, it follows that if the inquiring attorney has a mandatory duty to report misconduct, he cannot advise his clients to not report the misconduct themselves.
As for pending bar complaints, the provision effectively lacked any substance because a complainant cannot unilaterally withdraw a bar complaint. Rule 48(g), Ariz. R. S. Ct. (“Unwillingness, failure of the complainant to cooperate with the state bar, withdrawal of a charge, settlement, compromise between the complainant and the respondent, or restitution by the respondent shall not abate the processing of any charge or complaint”).
Asking a client not to file a bar charge
Lawyers sometimes ask questions like this:
My prospective client makes me nervous because he seems like a complaining sort, but I’m willing to take him on as long as he agrees not to complain to the State Bar about me. Can’t I put a provision like that in my fee agreement? After all, we’re negotiating a contract and I’m providing him with ample needed services and he’s giving me something in return: money and peace of mind.
The short and easy answer in Arizona is no.
We’ve got a very clear, definitive rule, ER 1.8(h)(2): “A lawyer shall not…make an agreement prospectively limiting the client’s right to report the lawyer to appropriate professional authorities.”
Arizona added this provision in 2003.
Historical note: Before the 2003 change, ER 1.8(h) dealt only with prospectively limiting or settling malpractice claims. The State Bar’s Ethics Committee had noted this in Ariz. Ethics Op. 91-23. That opinion nonetheless concluded that an attorney could not settle a fee dispute with a client on the condition that the client agree not to file a complaint against the attorney with the disciplinary authorities, saying that "the same dangers addressed by ER 1.8(h) are present, and additionally, the clause tends to undermine the State Bar's self-regulation."
So is potential bar-charge anxiety simply part of our profession?
Yes, because you can’t prevent anyone from complaining to the State Bar. This might be where a secular/legal profession version of the Serenity Prayer could come in handy, so I customized the Agnostic AA Serenity Quest:
As a lawyer, I seek:
The serenity to accept the things I cannot change, such as the loose ends of a possible a bar complaint;
The courage to change the things I can, such as my dealings with clients, opposing counsel and others; and
The wisdom to know the difference