Opinion #66. Settlement of Malpractice Claim Which Also Involves Withdrawal of Grievance

Issued by the Professional Ethics Commission

Date Issued: January 7, 1986

Question

Pursuant to Maine Bar Rule 11(c)(1), Bar Counsel has requested an opinion concerning the following situation:

X has sued Attorney A for malpractice. X also filed a complaint concerning A’s conduct with the Grievance Commission. Proceedings on the grievance were stayed by the Commission pending the outcome of the malpractice action.

Counsel for A and for X have virtually agreed upon a settlement of the malpractice litigation. Counsel for A has, however, requested a provision in the settlement agreement whereby X undertakes to “withdraw” his pending grievance against A and not pursue that grievance at any time in the future.

Would such an agreement violate the Maine Bar Rules?

Opinion

The Bar Rules certainly do not encourage such a provision as part of a private settlement. Rule 7(g) provides that neither the refusal of a complainant to cooperate nor a settlement require abatement of a grievance proceeding. Hence, it may be doubted that the proposed agreement could accomplish very much. Nevertheless, it is not entirely clear just what X would be agreeing to do, and some versions of an agreement to “withdraw” and “not pursue” a grievance would clearly violate the Bar Rules.

If X will have agreed merely to inform Bar Counsel of the settlement, or even testify before the Grievance Commission that the settlement has occurred, none of the Bar Rules will be implicated. If X will have agreed to express a preference that the grievance not be prosecuted, or even mere satisfaction if it is not pursued, then we conclude that, unless these statements are entirely truthful, counsel will have violated Rules 3.2(f)(3) and 3.7(e) (1)(i). These Rules prohibit conduct involving dishonesty and misrepresentation and enjoin a lawyer to employ only such means as are consistent with truth in appearing before a tribunal. An agreement to provide this kind of statement in exchange for a settlement suggests strongly that it may be less than completely honest, e.g., see State v. Halleck, 308 N.W.2d 56, 59 (Iowa, 1981); Committee v. Halleck, 325 N.W.2d 117, 118 (Iowa 1982).

If the settlement agreement goes still further, for example, by providing for a payment to X contingent upon X’s refusal to cooperate with the Grievance Commission, Counsel for A and perhaps A as well, will have violated Rule 3.2(f)(1) by circumventing Rules 7(g), 7(r) and 5. Rule 3.2 (f)(1) provides: “A lawyer shall not . . . circumvent or subvert any provision of the Maine Bar Rules.” Rule 7(g) provides that neither a settlement nor failure of a complainant to testify abates a grievance. Rule 7(r) provides for compulsory testimony, and Rule 5 gives Bar Counsel authority to investigate allegations of misconduct on his own. Exacting an agreement not to cooperate in an investigation would seem at least to be conduct circumventing the investigation.

If the agreement purports to require X to avoid service of a subpoena or change his testimony—features not suggested by the question as stated—A’s attorney would appear to be violating Rule 3.7(g), which forbids various forms of witness tampering.


Enduring Ethics Opinion