Tempting Fate

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Lawyers accustomed to the give and take of negotiating might be tempted to use those skills to persuade clients to relinquish the right to bring ethics complaints against them no matter how their cases turn out.

Tempting, yes, but—like so many temptations—also forbidden.

Only a few states have enacted measures that specifically prohibit a lawyer from obtaining a client’s consent to waive the right to pursue grievances alleging ethics violations by the lawyer.

But courts and ethics regulators appear to be in universal agreement that it is wrong for a lawyer to enter into an engagement agreement that prospectively restricts a client’s right to file a grievance against the lawyer with disciplinary authorities. Making the settlement of a malpractice claim or fee dispute conditional on the client’s agreement not to report the lawyer’s misconduct also is looked on with disfavor.

Indeed, the consensus is that seeking such an agreement is never appropriate. Hawaii, one of the states that base their ethics codes on the ABA Model Rules of Professional Conduct, has revised its version of Model Rule 8.3 (Reporting Misconduct) to affirm that it is improper for lawyers to seek client waivers of the right to pursue ethics complaints.

The commentary to Hawaii’s revised Rule 8.3 states that it was changed “to make it clear that attorneys’ duties to clients and the profession are requirements that cannot be negotiated or given away or used to bludgeon opponents into acquiescence.” Illinois added a subsection to its version of Rule 1.8 (Conflict of Interest: Prohibited Transactions) to make the same point. And in California, the Business and Professions Code subjects a lawyer to discipline if he or she seeks to settle a client’s professional misconduct claim through an agreement providing that the client not report the misconduct to the state disciplinary agency, not cooperate with a disciplinary investigation or withdraw any complaint already filed.

In most jurisdictions, the prohibition against client waivers of ethics complaints is implied from provisions in professional conduct codes that address similar issues. The ABA Model Rules, for instance, do not directly address the issue. But Model Rule 1.8 does expressly prohibit agreements that prospectively limit a lawyer’s liability to a client for malpractice claims unless the client is independently represented in making the agreement. In the case of a client not otherwise represented or a former client, the lawyer must advise in writing that it is desirable to seek the advice of independent counsel and provide reasonable opportunity to do so.

Avoiding the Evils

State ethics regulators sometimes apply Rule 1.8 to agreements that seek to limit a lawyer’s liability for professional misconduct. A 1991 Arizona ethics opinion, for instance, concluded that such agreements “involve the same evils that [Rule 1.8] is designed to prevent: the strong potential of coercion and overreaching on the attorney’s part, and the potential conflict between the lawyer’s interests and those of his client.” Other states have interpreted agreements that limit a lawyer’s exposure to ethics complaints as attempts to thwart the disciplinary process and undermine the regulation of the profession.

Those opinions conclude that the power to regulate and discipline lawyers belongs ultimately to the state’s highest court, not individual lawyers. Agreements limiting liability for professional misconduct are deemed to violate Model Rule 8.4 (Misconduct), which prohibits a lawyer from engaging in conduct that is “prejudicial to the administration of justice.”

State ethics regulators also frown on the use of agreements that purport to limit the liability of lawyers for professional misconduct because they are incompatible with a lawyer’s duty to cooperate with the disciplinary process and to report ethics violations by other lawyers.

So when that temptation occurs to ask a client to give up the right to bring an ethics complaint, just tell yourself no. You’ll be happy you did.

Kathryn A. Thompson is research counsel for the ABA Center for Professional Responsibility.

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