By Alara Chilton
When a client files or threatens to file a State Bar complaint alleging a lawyer’s ethical misconduct, a lawyer may be tempted to impede a State Bar investigation by seeking to negotiate an agreement that shields the lawyer from the State Bar’s ability to investigate and prosecute a lawyer’s ethical misconduct. Such agreements are intended to ensure a client’s or former client’s silence regarding the alleged misconduct. However, a lawyer’s efforts to enter into such an agreement may run afoul of Business and Professions Code section 6090.5.
This statute provides:
(a) It is cause for suspension, disbarment, or other discipline for any licensee, whether acting on their own behalf or on behalf of someone else, whether or not in the context of litigation to solicit, agree, or seek agreement, that:
(1) Misconduct or the terms of a settlement of a claim for misconduct shall not be reported to the State Bar.
(2) A complainant shall withdraw a disciplinary complaint or shall not cooperate with the investigation or prosecution conducted by the State Bar.
…
(b) This section applies to all agreements or attempts to seek agreements, irrespective of the commencement or settlement of a civil action.
(Bus. & Prof. Code § 6090.5, subd. (a) & (b).)
The State Bar Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2012-185 regarding Business and Professions Code section 6090.5. The Opinion sheds historical light on the statute’s language when it was first enacted by the legislature in 1986.
[C]ommittee analysis addressed the harm in situations where attorneys against whom civil actions for misconduct were filed required plaintiffs to agree not to file complaints with the State Bar as conditions of settlement. To address this harm, section 6090.5 provided that it was a cause for suspension, disbarment, or discipline for an attorney to engage in such settlement agreements. (Cal. State Bar Form. Opn. 2012-185 at p. 2.)
The Opinion, although not binding[i], concludes that when a lawyer is settling a dispute with her client, section 6090.5 bars any attempt to “seek or obtain a client’s oral or written agreement not to make a State Bar complaint.” (Id. at 4.) It follows that withdrawal of the improper agreement before its execution does not cure the ethical violation. (Ibid.) The act of simply proposing an agreement to withdraw a disciplinary complaint is enough to violate the statute. (Ibid.)
It makes no difference if the lawyer was represented by counsel who attempted to solicit a settlement in violation of section 6090.5. (In re McCarthy (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 364, 381-382, fn. 19.) Indeed, the Review Department In re McCarthy referred the respondent’s counsel to the State Bar for investigation regarding his conduct in negotiating the prohibited settlement.
A recent unpublished Review Department decision (In the Matter of McCann, (January 24, 2024) (Case Nos. SBC-19-O-30228; SBC-22-O-30110 (consolidated)) illustrates the importance of abiding by this statute. McCann’s client filed a State Bar complaint after McCann became unresponsive to his client’s request to refund unearned fees. After McCann provided the refund, he emailed his client and thanked her for agreeing to dismiss the State Bar complaint. Attached to his email, McCann included a letter for his client’s signature which was addressed to the State Bar investigator who awaited McCann’s response to his client’s complaint. The Review Department found McCann culpable for violating section 6090.5, subdivision (a)(2).
McCann unsuccessfully argued he was simply inquiring if his client would withdraw her complaint and he did not condition the refund upon her doing so. The Review Department observed that under the statute, “‘discipline is required” for an attorney who “agree[s] or seek[s]” agreement to withdraw a State Bar complaint.’” (Id. at p. 8, original italics; citing Bus. & Prof. Code § 6095, subd. (a)(2).)
In summary, while it is common practice to enter into a settlement agreement when a dispute arises with a current or former client, a lawyer is wise to avoid a violation of section 6090.5. While it may be enticing to attempt to find a creative way around section 6090.5 to avoid a State bar investigation, the best way to protect one’s bar card is by following the ethical requirements of the State Bar Act and the Rules of Professional Conduct.
[i] Comment 4 to California Rule 1.0 states “[O]pinions of ethics committees in California, although not binding, should be consulted for guidance on proper professional conduct. . . .”