Although the data confirms that the majority of bar grievances against lawyers are ultimately closed or dismissed without punishment, the fact remains that lawyers may be faced with the threat of a bar complaint during their careers.

Sometimes a lawyer may observe conduct by another lawyer that appears to violate the Rules of Professional Conduct. In those instances, a reporting lawyer can consider whether the Rules require reporting and, if reporting is appropriate, when such a report should occur. For instance, reporting a lawyer to the bar during an ongoing litigation can sometimes seem like a tactic. The lawyer may also wonder whether it is an option to notify the offending lawyer that, if the matter does not resolve favorably, the lawyer will report the offending lawyer to the Bar. Is this ethical?

Other times, a client may notify an attorney that there is a dispute over the lawyer’s services and that a grievance – or even a lawsuit – is forthcoming. The lawyer may decide to settle the client’s claim to avoid a costly lawsuit. Could the client agree to waive or release any bar grievance as a condition of the settlement?

These issues are not uncommon, but they can create a host of ethical concerns. Here are some tips for navigating these landmines.

Is The Threat of a Bar Grievance an Effort to Gain a Litigation Advantage?

Bars take grievances very seriously. They also take seriously the possibility that someone could threaten or file a bar grievance to gain an advantage over an adversary. Bars are typically skeptical of such tactics, but they can happen.

Imagine a situation where an opposing counsel to a contentious litigation accuses a lawyer of violating the Rules of Professional Conduct. Can the opposing counsel then state that they are willing to look the other way on the grievance if the lawyer accepts a settlement very favorable to the opposing counsel’s client?

A lawyer receiving such a demand may be placed in a very difficult position because opposing counsel is essentially asking the lawyer to consider their own exposure or interests, potentially over the interests of their client. This scenario could create a risk that the lawyer is tempted to advocate for a settlement in order to prevent the lawyer’s exposure to the bar, which suggests that the client’s interests are not being fully considered.

The first step for the lawyer receiving such a demand is to consider the rules of the jurisdiction. Some jurisdictions have specific rules that prohibit such threats to file a bar grievance to gain an advantage in litigation. It can also be helpful to consider what the opposing counsel’s intentions may be. If the receiving lawyer has actually engaged in some misconduct, the lawyer can consider whether disclosure to the client or even withdrawal is appropriate. Seeking advice of the general counsel of the lawyer’s firm or outside legal malpractice counsel may be prudent to help the lawyer navigate this situation.

If the threat to go to the bar is simply an attempt at leverage, an agreement to waive such a grievance may not have any weight. Indeed, agreements not to pursue a bar grievance are generally not enforceable given the public policy support for alerting the bar to potential misconduct (and thus protecting the public from unethical lawyers).

Also, if the threatening opposing counsel ends up filing a bar grievance, it would certainly be relevant to the lawyer’s defense that the opposing counsel first threatened the grievance in an effort to extort a settlement.

Can a Client Be Asked to Waive a Potential Bar Grievance?

In the scenario in which a lawyer is settling a legal malpractice claim raised by a client, the lawyer may pursue a broad release to prevent future claims arising out of the same set of facts, for example. However, an attempt to also release potential bar grievances (or to prohibit the client from filing a grievance) may not be enforceable.

For example, Georgia specifically prohibits a lawyer from settling bar grievances under the Georgia Rule of Professional Conduct 8.4: “A lawyer shall not enter into an agreement containing a condition that prohibits or restricts a person from filing a disciplinary complaint, or that requires the person to request dismissal of a pending disciplinary complaint.” The general prohibition on this kind of settlement stems from the fact that the grievance process is designed to protect the community at large from lawyers who engage in ethical misconduct. Allowing agreements that prohibit parties from filing bar grievances undermines that public policy.

Georgia is not the only jurisdiction that prohibits lawyers from entering into agreements that would not permit a client to cooperate with the bar or report a grievance. Jurisdictions like California also have rules specifically aimed at this behavior. Other states have concluded that even if there is not a rule of professional conduct directly on point, this sort of activity is barred by other ethical rules. For example, some states have relied on their version of ABA Model Rule of Professional Conduct 8.4(d), which provides: “It is professional misconduct for a lawyer to… engage in conduct that is prejudicial to the administration of justice.” Attempting to interfere with the bar’s regulation of the profession as well as its reporting mechanisms and disciplinary enforcement can be considered prejudicial to the administration of justice.

By being aware of these limitations, lawyers can ensure that they do not engage in behavior relating to bar grievances that could give rise to a unique bar grievance of its own.