Dubois-Mark
Attorney Mark Dubois ()

I saw an interesting ethics decision out of Kentucky the other day involving an attempt to buy silence in a grievance case. The case was called Kentucky Bar Association vs. Unnamed Attorney. (There are a lot of unnamed attorney cases in Kentucky. This one was Dec. 19, 2013. You can find it on the Google.)

The case dealt with the settlement of a case against an attorney in a fee dispute case. During the pendency of the dispute, as often happens, a grievance was filed by the client. When the lawyer representing the lawyer settled the underlying matter, he (or she) required the client to sign an agreement agreeing to withdraw the bar complaint and to refrain from cooperating with or providing information to the Kentucky disciplinary authorities.

Disciplinary authorities don’t like it when folks do this. So the Kentucky ethics folks used Rule 3.4 to seek a sanction against the lawyer’s lawyer. I view this case as one of those “physician, heal thyself” problems. It’s not a good sign when your ethics lawyer gets her own ethics complaint going during your representation. Not a good sign at all!

Anyway, this rule prohibits a lawyer from asking a person other than a client from refrain from voluntarily giving information to another unless certain conditions are met. There has been quite a bit of discussion about the applicability of this rule to civil cases where lawyers condition settlement upon secrecy agreements. Some, like University of Connecticut law professor Jon Bauer, have opined that doing so is an ethical violation. There are some reported decision where various administrative and judicial authorities have found such agreements to be improper—such as involving Equal Employment Opportunity Commission matters and in cases dealing with the federal False Claims Act. The Kentucky case doesn’t solve that riddle, because it clearly deals only with disciplinary complaints.

In any event, the Kentucky Supreme Court found the lawyer guilty. This required it to read an “and” into part of the rule, creating a conjunctive instead of a disjunctive test. If the case had been filed in Connecticut, the answer would have been easy, as Connecticut’s rule 3.4(6) already contains the missing “and”. But that is not the point, as there are two reasons why Connecticut law would have made the case easier to decide.

First, there is a little-known provision in the rules applicable to the Connecticut grievance process that prohibits anyone from “withdrawing” a grievance. More than one client has learned this the hard way when they filed a complaint to get their lawyer’s attention and then sought to withdraw the complaint when they discovered that they had inadvertently created a conflict requiring the lawyer to withdraw from their representation.

Second, Connecticut’s Rule 8.3 contains a provision making it an ethical violation for a lawyer to condition the settlement of a civil dispute on the client agreeing not to grieve the lawyer. This is another of the “Connecticut only” rules not found in the model rule regime which are forever causing lawyer problems. (I am going to write a column about them one of these days! They make a lot of work for disciplinary lawyers.)

So what do you do when you settle with a client and want to buy peace, not only in the civil but also in the disciplinary forum? One way to handle the problem is to ignore it. Usually, when the “green salve” has been applied to the underlying problem, the client will have no further interest in the matter and will not file a grievance. But if a complaint has been already filed, the best you can do is to get something in writing that the client has been made whole and is now, if not happy, at least less unhappy with the lawyer than he was. Disciplinary counsel will be less inclined to push a case where they know the complainant is unlikely to cooperate, even under subpoena. Often, you can get a “go and sin no more” disposition involving a dismissal and a promise that the next transgression will not be dealt with so leniently.

While it is not uncommon to condition the settlement of a civil claim on a confidentiality agreement (at least until Professor Bauer wins the debate on the propriety of these), do not try to use the confidentiality agreement to interfere with the disciplinary process. It is a mug’s gambit. In Kentucky and Connecticut. •

Mark Dubois, the former chief disciplinary counsel in Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views expressed here are his own and not those of the CBA.