Bargaining with Complaints is Playing with Fire

Attempting to leverage a disciplinary action can land you in hot water.

By MATTHEW SAMUELSON and JAMES CARLSON

Fall 2013

When attempting to steer clear of a disciplinary complaint, attorneys must be mindful of violations that involve the mention of a disciplinary complaint. Confused? Read on.

There are two questions about this issue. One, where’s the line between notifying an attorney of a possible violation of the Colorado Rules of Professional Conduct and threatening an attorney with a complaint to gain an advantage in a legal matter? Two, can you include in a settlement agreement a condition that the other party withdraw a disciplinary complaint?

The rules surrounding this issue are meant to ensure that civil cases are resolved on their merits and not on improper considerations. A comment under Colorado Rule of Professional Conduct 4.5 states that when ulterior motives enter the equation it “tend(s) to diminish public confidence in our legal system.”

Let’s tackle the above questions individually.

A Fine Line

Colorado Rule of Professional Conduct 4.5(a) states, “A lawyer shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.”

However, Rule 4.5(b) goes on to say that it’s not a violation for a lawyer to simply notify another attorney of a potential violation. What does that distinction look like in the real world? Here are some tips:

·         If there is any hint of a quid pro quo, you run the risk of violating 4.5(a). Statements like “If you do this, then I’ll do that” probably implicate the rule.

·         If you’re unsure of whether another attorney’s action constitutes a violation, send a letter to the other attorney asking for clarification of his or her actions. Doing so exhausts your administrative remedies and gives a fellow professional the benefit of the doubt. It also ensures you have all the facts before proceeding. To ensure that the letter is not construed as a threat, it’s best to not mention the disciplinary system at all.

·         With regard to putting another lawyer on notice, ask yourself the following questions: “Do I intend to gain something by doing this?” “Does the other lawyer want my opinion?” “Why am I doing this?” If these or similar questions do not reveal good answers, you may not want to send the letter.

Conditional Withdrawal

Another issue to be aware of is that you cannot condition a settlement of any kind on the other party’s agreement to withdraw a disciplinary complaint. In past cases, the Office of Attorney Regulation Counsel has considered these agreements, and offers to make them, conduct prejudicial to the administration of justice in violation of Colorado Rule of Professional Conduct 8.4(d).

Similarly, Colorado Bar Association Formal Ethics Opinion 85 states that it is “improper for a lawyer to require a client to refrain from filing or to withdraw a grievance against the lawyer, or to refuse to cooperate with the disciplinary proceedings, as a condition of settlement of a malpractice claim.”

Broad confidentiality clauses that are intended to prohibit a party from revealing information to disciplinary authorities also may violate this rule. The attorney discipline system serves vital purposes distinct from those of the civil justice system and the interests of private parties involved in a civil matter.

A wise practitioner with concerns about either of these issues should refer to the Colorado Rules of Professional Conduct or consult with an attorney who specializes in Colorado disciplinary cases.

Matthew Samuelson is Chief Deputy Regulation Counsel for the Office of Attorney Regulation Counsel.

James Carlson is the Information Resources Coordinator for the Office of Attorney Regulation Counsel. If you have an idea for the OARC Update, contact him at j.carlson@csc.state.co.us.

Portions of this article were contributed by a member of the Supreme Court Advisory Committee.