It’s CLE season. Here’s a topic that has been raised more than once on the circuit:
- Mike – what do I do if opposing counsel threatens to file a disciplinary complaint against me?
My response? Let ’em. In fact, give ’em my address. Then, let’s talk about whether you want to report the threat.
When it comes to disciplinary complaints, my view is “File & Let File.”
I’ll proceed in reverse.
When threatened with a disciplinary complaint, a lawyer’s response might be “okay, my client and I will do X, but only if you and your client agree not to file a complaint against me.”
That’s a violation. Don’t take my word for it, take the word of the Vermont Professional Conduct Board.
Many years ago, the old PCB considered this situation:
- Lawyer secured a judgment against Former Client for an unpaid fee.
- Former Client hired an attorney and brought a malpractice claim.
- Lawyer hired an attorney too.
- Former Client made it clear that she intended to file a disciplinary complaint against Lawyer.
- Negotiating a resolution of both the unpaid judgment & the malpractice claim, Lawyer and Lawyer’s Attorney proposed that Former Client execute a release in which she agreed not to file a disciplinary complaint against Lawyer.
Back then, DR 6-102(A)(5) prohibited lawyers from engaging in conduct that was prejudicial to the administration of justice. These days, Rule 8.4(d) prohibits such conduct.
In Decision 44, the PCB concluded that Lawyer violated the rule by asking Former Client not to file a disciplinary complaint against him. Not only that, in Decision 67, the PCB concluded that Lawyer’s Attorney also violated the rule. Each was admonished.
Decision 67 includes language that, to me, remains important. The Board noted that it is a violation to ask a client to agree to forego making a disciplinary complaint, “no matter how frivolous [that complaint] might be.”
Vermont’s not alone on this issue. In Ethics Opinion 260, the D.C. Bar concluded that
- “[U]nder no circumstances may a lawyer seek to thwart the Bar’s duty to oversee, regulate and discipline its members by eliciting a former client’s agreement not to file a complaint with Bar Counsel.”
Many years ago, the New York Legal Ethics Reporter published You Can’t Stop a Client from Complaining. The article cites to several authorities that have reached similar conclusions as Vermont and D.C. Among others, the article quotes from the Arizona State Bar’s Advisory Ethics Opinion 91-23:
- “Additionally, and more importantly, agreements limiting an attorney’s exposure to disciplinary action have the effect of undermining the Bar’s efforts at self-regulation. It is one thing to say that an attorney can conduct an arm’s-length transaction with a client (who is represented by independent counsel) which will limit the client’s monetary damages in a potential malpractice case, and another to say an attorney can ‘limit’ the integrity of the profession by preventing a complaint from being filed with the State Bar. As a matter of public policy, every attorney must be accountable for his misconduct, and should not be able to contract his way out of it.”
Finally, I’m as concerned when the lawyer who makes the request is not a party to the underlying action. Imagine:
- Lawyer represents Client in Client v. Other
- Other proposes a settlement
- Lawyer demands that any resolution include an agreement that Other not file a disciplinary complaint against lawyer
To me, that’s the exact type of conduct that Vermont, D.C., and Arizona have said is not allowed. Not only that, in my view, it puts Lawyer in conflict with Client. That is, what if Other refuses to forego a complaint against Lawyer and, as a result, Client is deprived of a settlement that Client otherwise would have accepted?
When threatened, my thought is that a lawyer should “let file.”
I’m not a fan of lawyers who threaten other lawyers with disciplinary complaints. If you have one, file it. Also, remember that Rule 8.3 mandates reports in certain situations. There is no exception for “I was able to use the threat of a complaint to extract concessions from the lawyer.”
Again, I’m not alone in this view. In 2012, the ABA Journal reported a decision in which the Indiana Supreme Court publicly reprimanded a lawyer for threatening to file a disciplinary complaint against another lawyer.
Further, as noted by The Law for Lawyers Today, the threat to file a disciplinary complaint can backfire. The post cites to the New York City Bar Association’s Formal Opinion 2015-5. The opinion does not conclude that every threat to make a disciplinary complaint is a violation. However, the opinion urges caution. It concludes:
- “An attorney who intends to threaten disciplinary charges against another lawyer
should carefully consider whether doing so violates the New York Rules. Although
disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purposeother than to embarrass or harm another person or that violates other substantive laws ,such as criminal statutes that prohibit extortion.”
In sum, when it comes to disciplinary complaints, I think the best approach is “file and let file.”