Can a Lawyer Enter Into an Agreement Restricting a Person’s Ability to Report the Lawyer to the Office of Disciplinary Counsel?

No. A recent Illinois disciplinary decision addressed whether it was appropriate for a lawyer to include a “non-disclosure provision” in her engagement agreement. In that provision, the lawyer’s client agreed to “refrain from reporting any phase of the representation to any external agency,” including disciplinary counsel. See In re Laura Lee Robinson, IL Atty. Registration and Disicplinary Comm. No. 2016PR00126 (Aug. 15, 2017). Under the disciplinary standards applicable in Illinois, the answer was pretty clear:

Rule 8.4(h) of the of the Illinois Rules of Professional Conduct (2010) states that it is professional misconduct for a lawyer to “enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission.”

Louisiana, however, has no comparable provision in its disciplinary rules. Nevertheless, Louisiana Rule 8.4(d) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct that is prejudicial to the administration of justice.” See La. Rules of Prof’l Conduct r. 8.4(d). It is virtually certain that the Louisiana Office of Disciplinary Counsel would consider a similar agreement to violate the rules as conduct “prejudicial” to bringing an unethical lawyer to justice.1

  1. Note also that another lawyer could not participate in the making of such a nondisclosure agreement in the context or a settlement (or otherwise). Louisiana lawyers have an obligation to report serious misconduct by other lawyers to the Office of Disciplinary Counsel. See La. Rules of Prof’l Conduct r. 8.3(a).

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