Formal Opinion No. 2012-185
California Ethics Opinions
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?
THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
Business and Professions Code section 6090.5 prohibits an attorney from seeking a client’s written or oral agreement not to file a State Bar complaint against that attorney. “Seeking” an agreement includes any attorney communication to a client proposing or suggesting a prohibited agreement. “Seeking” also 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 might 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.
Rules 1-500(B) of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6090.5.
STATEMENT OF FACTS
Attorney represented Former Client in litigation which has concluded. Attorney sent a closing letter and final bill. Former Client agrees that the representation has concluded. During that representation, Attorney and Former Client had a dispute about Attorney’s litigation tactics. Former Client claimed Attorney violated State Bar ethics rules, and Former Client threatened to file a State Bar complaint against Attorney. Attorney and Former Client reached a preliminary agreement to settle their dispute by Attorney writing-off a portion of Former Client’s final bill, and by Former Client agreeing to include the following provisions proposed by Attorney in a signed settlement agreement: (1) Former Client represents that she has not filed a State Bar complaint against Attorney; (2) Former Client represents that she has no present intention to file a State Bar complaint against Attorney; and (3) Former Client agrees not to file any complaint against Attorney with the State Bar relating to or arising out of the representation. After consulting Business and Professions Code section 6090.5, Attorney informed Former Client that the final written settlement agreement need not include a written agreement that Former Client would not report Attorney to the State Bar – because Attorney told Former Client he was satisfied with taking Former Client at her word that she would not do so.
1. Business and Professions Code section 6090.5
This opinion illustrates various applications of California Business and Professions Code section 6090.5, which provides in part:
(a) It is cause for suspension, disbarment, or other discipline for any member, whether as a