ETH 2012-185.
Court: | California |
FREE EXCERPT
California Ethics Opinion
2012.
ETH 2012-185.
THE STATE BAR OF
CALIFORNIASTANDING COMMITTEE ON PROFESSIONAL
RESPONSIBILITY AND CONDUCTFORMAL OPINION NO. 2012-1852012ISSUES: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?DIGEST:
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.
AUTHORITIES
INTERPRETED:
Rules 1-500(B) of the Rules of Professional Conduct of the State
Bar of California.(fn1)' 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.
DISCUSSION
1. Business and Professions Code section
6090.5
This opinion illustrates various applications of California...
To continue reading
FREE SIGN UP