Opinions of The General Counsel, 0921 ALBJ, Vol. 82 No. 5 Pg. 380 (September, 2021)
| Position | Vol. 82 5 Pg. 380 |
Roman A. Shaul roman. shaul@ alabar.org There Is No Negotiating the Withdrawal of a Bar Complaint
QUESTION:
Can an Alabama lawyer, in connection with a settlement of a civil or criminal matter, propose or participate in an agreement to withdraw or dismiss a bar complaint?
ANSWER:
It is ethically impermissible for a lawyer, in connection with the settlement of a civil or criminal matter, to propose or participate in an agreement to withdraw a bar complaint.
DISCUSSION:
It is not uncommon for the Office of General Counsel ("OGC") to receive bar complaints against lawyers who are engaged in a pending and related civil or criminal matter. Those bar complaints are often filed by opposing clients or counsel. Occasionally, when it comes time to resolve the case, there is an attempt to insert a provision into a settlement agreement requiring withdrawal of the bar complaint. It is the opinion of the OGC that a lawyer cannot request t hat a meritorious bar complaint be withdrawn or allow her client to agree to withdraw said bar complaint.
As an initial matter, the OGC does not have a formal process whereby an individual may withdraw a bar complaint that has already been filed. Rule 13 of the Alabama Rules of Disciplinary Procedure makes clear that the OGC can proceed with a disciplinary matter even if the original complainant decides not to cooperate. Specifically, the rule states that, "Disciplinary proceedings shall not necessarily be abated because of unwillingness or neglect of the complainant to sign a complaint or to cooperate in the investigation or prosecution of a charge, settlement or compromise between the complainant and the respondent, or because of restitution by the respondent." In other words, agreements between the parties in the civil or criminal action are not binding on the OGC.
Lawyers are ethically required to report violations of the Alabama Rules of Professional Conduct.1 Rule 8.3(a), Ala. R. Prof. C, requires "[a] lawyer possessing unprivileged knowledge of a violation of Rule 8.4 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."8.4(a), Ala. R. Prof. C, states: "[i]t is professional misconduct for a lawyer to:... violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce...
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