In Opinion 2010-3, the Board of Commissioners on Grievances and Discipline advises Ohio’s lawyers that it is improper to require current or former clients to withdraw a disciplinary complaint – or to refrain from filing one – as part of settlement over a legal malpractice claim. The opinion is largely based on Prof. Cond. Rule 8.1.'s requirement of full disclosure in lawyer discipline matters. The Board cited several cases that have come before the Ohio Supreme Court to show a lawyer’s effort to impede reporting of a matter or thwart the disciplinary process is improper1. The Board noted: “[s]uch conduct constitutes conduct prejudicial to the administration of justice . . . and conduct adversely reflecting on fitness to practice law 2."
Requirement to Assist in Investigation. A lawyer is required to respond completely and honestly to a demand for information by a disciplinary authority. This full candor and cooperation must be given in response to the initial letter inquiry, throughout the investigation, and during the subsequent formal disciplinary proceeding3.
Financial Settlements to Avoid Reporting. The Board cited a case where a lawyer sent a letter to a client proposing a financial settlement to resolve a dispute if the client promised not to file a grievance claiming professional misconduct or to initiate a criminal complaint. The Board observed that lawyer was disciplined by the Court for misconduct in that instance4.
Requests to Withdraw a Grievance. The Board extended its Opinion to not only cover financial settlements to avoid reporting misconduct, but also instances where the client has already filed the grievance but is requested to or agrees to withdraw the grievance as part of a settlement.