Is this an attorney ethical violation?

[Anonymous]

I’ll try to be succinct. This is an extended family member, not me so I’ll also leave out anything personal. This was a family court situation, which I know can be extremely messy. She hired an attorney through a law firm that was recommended. The attorney they assigned was brand spanking new, and the partner assured her that this attorney would be mentored, monitored, and supported throughout the entire trial. To say that didn’t happen would be an understatement. She was grossly, unprepared, made not one single objection, didn’t introduce most of the evidence provided to her, mismanaged her time and ran out of time leaving the other party essentially not cross-examined. I could go on and on, but I will just say that she could’ve done a better job herself. I know people say that all the time, but in this case, it really was quite true. She could’ve at least achieved the same result without spending upwards of $30,000.

OK, so now she has a new attorney trying to undo the mess that this trial attorney created, and her new attorney fully agrees that it’s a mess. But that attorney is obviously focused on moving forward. In the meantime, my family member contacted the old firm and outlined point by point with very specific examples of how things did not go the way they represented they would. Not the outcome, but the process where they essentially left this woman by herself with not 1 ounce of assistance. They were asking for a refund of some, not all, of the money they paid upfront for this misrepresentation.

As it turns out, they did get a partial refund, but in exchange, they had her sign an NDA committing to not making a Bar complaint. That felt unprofessional and dishonest to me and a quick Google search is telling me that it is an ethical violation. But that’s Google. Are there any attorneys here who could weigh in on whether or not this is an actual ethical violation by this firm??

[Anonymous]

Just submit a state bar complaint. They will figure it out. You as the client don’t have to do that.

[Anonymous]

OP here- That would technically violate the NDA. I guess I’m wondering also if such an NDA is enforceable if it’s an ethical violation itself.

[Anonymous]

Read the nda bc if this firm is as sloppy as it sounds, it likely doesn’t apply to you, so you could submit a detailed complaint.

[Anonymous]

To be sure, you can ask the state bar association.

[Anonymous]

It really depends on the state. Given how aggressive the DC Bar office is, I do not think they’d be happy with it.
If you call the state bar and just ask in th abstract they can probably answer.

[Anonymous]

No one here can tell you whether or not there was an ethical violation with regard to how this attorney performed in court. No one here knows whether or not the evidence that this young attorney was given actually should have been entered into evidence, or whether or not she actually should have been making objections, etc. Clients often don’t like the decisions that attorneys make with regard to what to do in court, what to enter into evidence, etc. But attorneys often know things that that client does not, for instance, whether or not things are admissible at all. Yes, that attorney had a duty of competence, and both she and the firm should have been making sure she was adequately prepared if she was very new to practice. But no one here is qualified to say whether she actually was or not.

As far as the NDA goes, your friend signed it. They took money, and they signed the NDA. Generally speaking, that is the end of the story. Literally. If this person is now wishing they hadn’t signed the NDA, for whatever reason, they can pay another attorney to look at it and see if there’s a way to get out of it and file a bar complaint. But no one here should be advising you on that. You’re gonna have to have an actual lawyer look at it and advise her as to whether or not the NDA is enforceable, and if it is whether she should be violating the NDA anyway.

Plenty to look at here. But none of it by random strangers on DCUM.

[Anonymous]

She should submit the complaint and let them try to enforce the NDA. It's arguably against public policy to try to conceal ineffective assistance of counsel or other misconduct.

[Anonymous]

The applicable rule might be whatever that state has in the way of model rule 1.8(h).

An NDA could be seen as getting in the way of ethical duties to the client, and it could be seen as getting in the way of the state’s ability to discipline attorneys who engage in misconduct/malpractice. Those would be problem areas with NDAs. But as stated above, an actual lawyer needs to look at this. Asking the state’s Bar Association a general question without giving any details regarding enforceability/ethics of an NDA signed by a client is an easy place to start.

[Anonymous]

Anonymous wrote:No one here can tell you whether or not there was an ethical violation with regard to how this attorney performed in court. No one here knows whether or not the evidence that this young attorney was given actually should have been entered into evidence, or whether or not she actually should have been making objections, etc. Clients often don’t like the decisions that attorneys make with regard to what to do in court, what to enter into evidence, etc. But attorneys often know things that that client does not, for instance, whether or not things are admissible at all. Yes, that attorney had a duty of competence, and both she and the firm should have been making sure she was adequately prepared if she was very new to practice. But no one here is qualified to say whether she actually was or not.

As far as the NDA goes, your friend signed it. They took money, and they signed the NDA. Generally speaking, that is the end of the story. Literally. If this person is now wishing they hadn’t signed the NDA, for whatever reason, they can pay another attorney to look at it and see if there’s a way to get out of it and file a bar complaint. But no one here should be advising you on that. You’re gonna have to have an actual lawyer look at it and advise her as to whether or not the NDA is enforceable, and if it is whether she should be violating the NDA anyway.

Plenty to look at here. But none of it by random strangers on DCUM.

I get all of that and trying to be succinct left a lot out of course. My basic question while trying to provide context is whether it’s ever ok for a firm to condition refunded money on not filing a bar complaint. They obviously know there’s a basis for a complaint there, or else they’d say complain, we don’t care.

[Anonymous]

Anonymous wrote:Read the nda bc if this firm is as sloppy as it sounds, it likely doesn’t apply to you, so you could submit a detailed complaint.

I suppose this is going to vary by state but I question whether the bar will pursue an allegation of ineffective assistance of counsel when the complaint does not come from the aggrieved client. I agree with the advice elsewhere in the thread that OP's friend should contact the state bar on a no name's basis and ask about whether the NDA will preclude her from filing a complaint. That said, I would also wonder whether the state bar is going to get into the business of providing legal advice regarding whether the firm can recoup the refund it provided to OP's friend if she files a complaint. They will probably just tell her that she can still file a complaint without opining on any financial consequences if she does so.

[Anonymous]

She is getting screwed over and she should fire them. Find a small practice.

[Anonymous]

Op here- sorry if I misled. I personally wasn’t going to file a complaint. I’m simply wondering if it’s unethical for the firm to preclude her from doing so by conditioning her refund on an NDA/no bar complaint.

[Anonymous]

Very, very unlikely that this is an enforceable agreement.

[Anonymous]

For all those who have trouble reading, the question isn't whether the botched representation was an ethical violation. (As an aside, it may be malpractice, but it is less likely to be an ethical violation.)

The question is whether conditioning a partial refund of the fees paid on signing an NDA precluding a bar complaint is an ethical violation. Lawsuits, or potential lawsuits, are settled all the time with NDAs included, and I bet that is how this settlement is couched. I'm not sure if the Model Rules preclude an NDA that prohibits a bar complaint.