PLEASE NOTE: Publication for public comment is not, and shall not be construed as a recommendation or approval by the Board of Trustees of the materials published.

SUBJECT

Proposed Formal Opinion Interim No. 09-0001A (State Bar Complaint Threats)

BACKGROUND

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.

PROPOSAL:

Proposed Formal Opinion Interim No. 09-0001A considers: In settling a dispute with a former client, may an attorney seek: (1) the former client’s written representations that no State Bar complaint has been filed; (2) the former client’s representation that he or she has no present intention to file a State Bar complaint; (3) the former client’s written contractual agreement not to file a State Bar complaint against the attorney based on matters relating to or arising out of the representation; or (4) the former client’s oral agreement not to file a State Bar complaint against the attorney based on matters relating to or arising out of the representation?

The opinion interprets rule 1-500(B) of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code section 6090.5.

The opinion digest states: Business and Professions Code section 6090.5 prohibits an attorney from seeking a client’s written or oral agreement not to file a State Bar complaint against that attorney. “Seeking” an agreement includes any attorney communication to a client proposing or suggesting a prohibited agreement. “Seeking” also may encompass factual recitations in the settlement agreement that the client has not filed a State Bar complaint, or concerning the client’s future intentions regarding filing a State Bar complaint. Section 6090.5 might prohibit these types of recitations because they could produce an impermissible chilling effect on the client’s future filing of a State Bar complaint. If a lawyer seeks an oral or written agreement to not file a State Bar complaint, withdrawal of that request does not cure the ethical violation.

At its September 15, 2011 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 09‑0001A for a 90‑day public comment distribution.

KNOWN FISCAL/PERSONNEL IMPACT

None

ATTACHMENTS:
Proposed Formal Opinion Interim No. 09-0001A
    SOURCE:

    State Bar Standing Committee on Professional Responsibility and Conduct

    DEADLINE:

    5 p.m., January 31, 2012

    DIRECT COMMENTS TO:

    Angela Marlaud
    Office of Professional Competence, Planning and Development
    State Bar of California
    180 Howard Street
    San Francisco, CA 94105-1639
    Ph. # (415) 538-2116
    Fax # (415) 538-2171
    E-mail: angela.marlaud@calbar.ca.gov