Cal. State Bar Formal Opn. No. 2012-185 — Settling Dispute with Former Client

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THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2012-185
ISSUES: In settling a dispute with a former client, may an attorney seek: (1) the former client’s
written representation 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?
DIGEST: 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.
AUTHORITIES
INTERPRETED: Rules 1-500(B) of the Rules of Professional Conduct of the State Bar of California.1/
Business and Professions Code section 6090.5.
STATEMENT OF FACTS
Attorney represented Former Client in litigation which has concluded. Attorney sent a closing letter and final bill.
Former Client agrees that the representation has concluded. During that representation, Attorney and Former Client
had a dispute about Attorney’s litigation tactics. Former Client claimed Attorney violated State Bar ethics rules, and
Former Client threatened to file a State Bar complaint against Attorney. Attorney and Former Client reached a
preliminary agreement to settle their dispute by Attorney writing-off a portion of Former Client’s final bill, and by
Former Client agreeing to include the following provisions proposed by Attorney in a signed settlement agreement: (1)
Former Client represents that she has not filed a State Bar complaint against Attorney; (2) Former Client represents that
she has no present intention to file a State Bar complaint against Attorney; and (3) Former Client agrees not to file any
complaint against Attorney with the State Bar relating to or arising out of the representation. After consulting Business
and Professions Code section 6090.5, Attorney informed Former Client that the final written settlement agreement need
not include a written agreement that Former Client would not report Attorney to the State Bar – because Attorney told
Former Client he was satisfied with taking Former Client at her word that she would not do so.
DISCUSSION
1. Business and Professions Code section 6090.5
This opinion illustrates various applications of California Business and Professions Code section 6090.5, which
provides in part:
1/ Unless otherwise indicated, all future references to rules in this opinion will be to the Rules of Professional
Conduct of the State Bar of California.

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(a) It is cause for suspension, disbarment, or other discipline for any member, whether as a party or as an
attorney for a party, to agree or seek agreement, that:
(1) The professional misconduct or the terms of a settlement of a claim for professional
misconduct shall not be reported to the disciplinary agency.
This section applies to all settlements, whether made before or after the commencement of a civil action.
Section 6090.5 initially was adopted by the Legislature in 1986 after a well-publicized and comprehensive review of
the State Bar’s disciplinary structure and procedures. Specifically, the purpose was “to provide for closer
monitoring of attorney activity, and greater breadth in attorney punishment.” Analysis of the Senate Committee on
Judiciary regarding Senate Bill 1569 (Presley) as amended February 24, 1986.2/ With regard to the specific
language of section 6090.5, committee 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 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.
In 1996, the Legislature amended section 6090.5 by adding the language “to agree or seek agreement.” Previously,
section 6090.5 stated that a member could not “require” as a condition of settlement that misconduct not be
reported.3/ The added term “to agree or seek agreement” implies that the Legislature sought to expand section
6090.5’s application. No California ethics case has yet interpreted the phrase “to seek agreement,” yet the common
usage of the word “seek” is broad. Webster’s Dictionary defines “seek” as “to resort to, to go to,” “to go in search
of,” “look for,” and to “inquire for.” Webster’s Third New International Dictionary (3d ed. 2002) p. 2055.
Indeed, a settlement offer by an attorney to a complaining witness to withdraw a State Bar complaint is a violation
of section 6090.5. In re McCarthy (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 364 involved an attorney who
committed defalcation against a business partner while acting as a fiduciary. While attempting to settle the dispute,
the attorney offered a settlement term that would have the complaining witness “contact the State Bar to withdraw
any claims.” The complaining witness refused, and settlement was never consummated. In disciplinary
proceedings, the court held that the attorney’s intent to agree to withdrawal of the State Bar complaint in the civil
settlement agreement was itself a violation of section 6090.5.4/ In In re Brockway (Review Dept. 2006) 4 Cal. State
Bar Ct. Rptr. 944, an attorney violated section 6090.5(a)(2) when he entered into a settlement agreement resolving a
fee dispute in that the client “agreed to settle [the fee] dispute and to withdraw the complaint pending before the
State Bar, all in accordance with the terms of this Agreement.”5/
2/ The legislative history reveals that the Legislature addressed and identified shortcomings of the then-existing
system for disciplining and taking action against attorneys who engaged in illegal or unethical conduct. The
legislation particularly addressed reports of attorney misconduct to the State Bar, due to criticism leveled at the Bar
“that attorneys with poor criminal or professional records often continue to practice for years without penalty.”
Analysis of the Senate Committee on Judiciary regarding Senate Bill 1569 (Presley) as amended February 24, 1986.
3/ The 1996 amendment rewrote the section that had read: “It is a cause for suspension, disbarment, or other
discipline for any member of the State Bar to require as a condition of a settlement of a civil action for professional
misconduct brought against the member that the plaintiff agree to not file a complaint with the disciplinary agency
concerning that misconduct.” (Emphasis added.)
4/ Section 6090.5(a)(2), which is not applicable directly under the facts of our hypothetical, nonetheless uses the
same language. An attorney is subject to discipline should the attorney “agree or seek agreement,” that a
complaining party withdraw a disciplinary complaint. In addition, the attorney in In re McCarthy was represented
by counsel who attempted to negotiate the prohibited settlement term in violation of section 6090.5. The court also
referred that counsel to the State Bar for negotiating an improper settlement on the attorney’s behalf. In re
McCarthy (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. at pp. 381-382, fn. 19.
5/ By contrast, disciplinary proceedings under the prior version of section 6090.5 were more lenient concerning
offers to settle. In Matter of Fonte (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 752, the court found that an
attorney’s attempt to have clients withdraw existing State Bar complaints did not violate section 6090.5: “[C]lients
had filed complaints with the State Bar when the settlements were proposed and the statute does not address
settlements in which the client agrees to withdraw a complaint pending with the State Bar.” In Matter of Blum

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Based upon legislative intent as reflected the 1996 amendment, we conclude that section 6090.5 must be broadly
interpreted as prohibiting attorneys from seeking to conceal from the State Bar unethical conduct through a written
or oral client agreement. Section 6090.5, accordingly, also augments rule 1-500(B): “A member shall not be a party
to or participate in offering or making an agreement which precludes the reporting of a violation of these rules.”
2. Factual Application
A. Former Client’s Factual Representations
The first contractual provision in question – “Former Client represents that she has not filed a State Bar complaint
against Attorney” – concerns a factual representation. The representation does not seek a settlement term that
Former Client will refrain from reporting misconduct to the State Bar. It does not involve any enforceable promise
from Former Client to do or refrain from doing anything. Arguably, Attorney does not violate section 6090.5 by
seeking such a factual representation. The provision refers only to events that have occurred in the past and,
therefore, cannot be construed as Attorney’s attempt to “seek” a Former Client agreement not to report in the future.
Yet, from the Former Client’s perspective, this factual representation may have a chilling effect. In our facts,
Former Client had already threatened filing of a State Bar Complaint, and this contractual provision might dissuade
Former Client from doing so. In particular, an unsophisticated client may mistakenly believe that such a factual
representation would waive that client’s right to file a complaint. Further, a substantial delay between the time of
negotiation and the time of signing of the agreement may have the same effect as seeking an agreement not to file a
State Bar complaint during the delay. Accordingly, while this provision itself may not be a violation of section
6090.5, we conclude the chilling effect on Former Client’s future actions could be a violation under certain
circumstances.
B. Former Client’s Representations About Future Intentions
The second contractual provision in question – “Former Client represents that she has no present intention to file a
State Bar complaint against Attorney” – does not violate section 6090.5 in and of itself. It could be argued that, like
the first provision, it is a factual recitation. It factually recites Former Client’s present intention. It does not obligate
Former Client to do or refrain from doing anything.
Nonetheless, we conclude under our facts that this provision objectively reflects Attorney’s intent to suppress the
complaint. Former Client previously threatened to file a complaint with the State Bar. A statement that Former
Client “has no present intention to file a State Bar complaint” implies that Attorney may have intent, which may
itself constitute “seeking” an implicit agreement. The statement of Former Client’s present intent also may be a
material part of the settlement bargain from the perspective of Attorney, particularly if Attorney intended the
provision to produce a chilling effect on any filing of a State Bar complaint. Thus, the provision would have the
effect of deterring a future report. Section 6090.5 was adopted and amended to prohibit settlements seeking to
dissuade or prevent filing of disciplinary complaints. Accordingly, including a provision stating that Former Client
“has no present intention to file a State Bar complaint” is considered an ethical violation.
C. Former Client’s Agreement Not to Report
The third contractual provision in question – “Former Client agrees not to file any complaint against Attorney with
the State Bar relating to or arising out of the representation” – would violate section 6090.5 if included in the
settlement agreement. The provision is directly contrary to section 6090.5.
We also conclude that Attorney’s removal of that language before the contract was signed does not cure the ethical
violation. In our facts, Attorney eventually recognized that including this settlement provision would violate section
(Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 170, the court held the attorney did not violate section 6090.5
because the evidence did not show attorney “required [client] to forbear from making a State Bar complaint as a
condition of a civil settlement.” Fonte and Blum, however, were decided under narrower statutory language, which
did not impose discipline for “seeking” an agreement.

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6090.5. Attorney then sought to withdraw the provision. Nonetheless, section 6090.5 compels the conclusion that
an attorney “seeks” a client agreement not to report allegations of ethical breaches simply by proposing such
language in a contract draft. We conclude Attorney also violated section 6090.5 by obtaining Former Client’s
agreement not to report – albeit orally. The mere fact that the agreement was oral and not written is irrelevant under
section 6090.5 – both forms of agreement violate section 6090.5.6/
CONCLUSION
Business and Professions Code section 6090.5 bars an attorney’s attempt, in settling a dispute with his or her client,
to seek or obtain a client’s oral or written agreement not to make a State Bar complaint. Section 6090.5 may also
prohibit a lawyer from seeking representations of the client’s intentions or actions regarding filing a complaint with
the State Bar. Even a simple contractual factual recitation that the client has not yet made a State Bar complaint in
the past may be an ethical violation since it could produce a chilling effect on the client’s future actions. Once a
lawyer seeks such an oral or written agreement, the withdrawal of that request will not cure the ethical violation.
This Opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of
California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees,
any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
6/ In some circumstances, a client may suffer no harm from the inclusion of a provision in violation of Section
6090.5 in a proposed settlement agreement if the provision is removed prior to execution. Although the Committee
expresses no opinion on the application of the State Bar’s Standards for Attorney Sanctions for Professional
Misconduct to this scenario, we note that under Standard 1.2, subdivision (e)(iii), the “lack of harm to the client or
person who is the object of the misconduct...” is a factor in mitigation. As the Supreme Court held in Baker v. State
Bar (1989) 49 Cal.3d 804, 822 [263 Cal.Rptr. 798], fn. 7, “[t]he circumstances in which the misconduct occurred or
subsequent efforts by the attorney to correct the condition that precipitated the misconduct may demonstrate that the
misconduct will not likely recur.” See also In the Matter of Blum (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr.
403, 413 (subsequent to her misconduct an attorney’s handling of finances and trust account showed “objective steps
to atone for the consequences” of misconduct).

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