At some point during their careers, lawyers may be faced with the threat of a bar grievance or even have one filed against them.

Sometimes a former client will raise the prospect of bar grievance during the course of litigation over a legal malpractice claim. Other times a lawyer may face the threat from opposing counsel in a general litigation matter, who may be improperly attempting to use that threat as a way to gain leverage in the case or force a settlement.

Navigating these circumstances presents a number of ethical considerations. One question lawyers may ask themselves is whether they can head off a formal grievance by settling or releasing it as part of ongoing litigation. There can also be pressure to protect the client’s interests as well as the lawyer’s own. Here is an overview of how to handle such threats.

Prohibition on Settling Bar Grievance With a Client

Imagine a scenario where a lawyer represented a client in a real estate transaction. Unhappy with the result, the client sues the lawyer for malpractice and alleges that the lawyer breached ethical duties. Ultimately, the lawyer and client agree to settle the malpractice claim, which includes a release.

The lawyer wonders whether the agreement could include a provision releasing any potential bar grievance or prohibiting the former client from filing a formal bar grievance mirroring the malpractice claim. Generally speaking, the answer is no.

Some jurisdictions, such as California, have rules of professional conduct that specifically prohibit a lawyer from “settling” a bar grievance or demanding that a client not file one (or not cooperate with the bar). Other jurisdictions find that this sort of conduct is prohibited by other rules (even if the rules do not expressly address resolving bar grievances).

For example, Florida found such conduct prohibited by a 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.

Georgia prohibits a lawyer from settling bar grievances under Rule of Professional Conduct 8.4, which provides: “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 rationale for prohibiting the lawyer from attempting to settle a pending or potential bar grievance is grounded in the notion that the grievance process is designed to protect the community by ensuring that misconduct is detected and punished.

For similar reasons, some jurisdictions have concluded that any agreements that prohibit the filing or require the withdrawal of a bar grievance are unenforceable. Others have also found that a former client has no standing to terminate ongoing proceedings once initiated—such authority lies instead with the Bar or the courts.

Handling the Threat of a Bar Grievance From Opposing Counsel

Now consider the situation where the lawyer is involved in contentious litigation, consisting of constant discovery disputes with the other side. Opposing counsel accuses the lawyer of engaging in misconduct and violating the applicable rules of professional conduct in discovery.

Opposing counsel then advises that if the lawyer does not accept a settlement offer—an offer that coincidentally happens to be very favorable for the opposing counsel’s client—then counsel will file a bar grievance against the lawyer, accusing the lawyer of misconduct in the pending litigation.

At the outset, threatening to file a bar grievance to gain an advantage in litigation generally violates ethical obligations. Some jurisdictions, such as the District of Columbia, have rules that specifically prohibit such threats.

When on the receiving end, the first step is to assess the threat. It may be that the threat is entirely baseless or purely raised for purposes of intimidation or to attempt to gain a strategic advantage. It is for that reason that state bars often decline to consider bar grievances during the pendency of ongoing litigation to avoid being manipulated into assisting an adversary in improperly gaining a litigation advantage.

Typically, agreements not to pursue a bar grievance are not enforceable given the public policy support for alerting the bar to potential misconduct (and thus protecting the public from unethical lawyers).

Further, as a client-service matter, settlements are supposed to resolve claims between parties, not collateral claims about misconduct of those parties’ lawyers. In other words, it is the client’s settlement, not a settlement to resolve potential misconduct by the lawyer.

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.

Additional Things to Consider

Lawyers can remain cognizant of their ethical obligations when navigating these scenarios and consult the applicable rules of professional conduct.

In some situations, the lawyer may consider consulting with their firm’s general counsel or with counsel outside the firm to ensure compliance with the rules and receive guidance on how to handle the threat of a bar grievance (particularly where such threats could implicate insurance coverage).