Is this an attorney ethical violation?

[Anonymous]

Anonymous wrote: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.

Maybe.

Depends on what state she is in and how that state's rules of professional responsibility apply to her exact situation.

[Anonymous]

Honestly bar complaints rarely do much. You didn’t sign anything so do factual reviews online.

[Anonymous]

I would tell the family member to call the state bar and ask whether, generally, an attorney can make a client sign an NDA committing to not filing a bar complaint. This wouldn't be violating the NDA because they aren't giving specifics of firm, the situation, etc. It's just a general question.

[Anonymous]

Anonymous wrote: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.

The relevant state's actual rules are ultimately what matter here.

But while the Model Rules don't explicitly prohibit such NDAs, the profession's self-regulation is arguably harmed by such agreements and that is probably going to be pretty persuasive when it comes to how many, if not all, states handle things.

[Anonymous]

Anonymous wrote:I would tell the family member to call the state bar and ask whether, generally, an attorney can make a client sign an NDA committing to not filing a bar complaint. This wouldn't be violating the NDA because they aren't giving specifics of firm, the situation, etc. It's just a general question.

+1. If this is an ethical question, it's an easy "No." Then your family member can file a complaint. If it's answer that depends on the circumstances, then the family member will hear that and can decide if they just want to follow the NDA.

[Anonymous]

Thanks everyone!!! -OP

[Anonymous]

Anonymous wrote:

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:

Anonymous wrote:

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.

I don't think there is anything obvious here. Bar complaints are a pain and take away from billing. Their NDA is explicitly comprehensive, but that doesn't mean they believe they are at risk of an adverse finding. What I wonder is why the client did not seek alternative representation rather than continuing with someone they didn't trust.

I also don't think you can chalk up an adverse outcome to either bad lawyering or ineffective mentoring. I rarely hear of a family law dispute where anyone is happy.

[Anonymous]

I don’t know the answer to your question about the ethical violation. But right now, your friend needs to focus on getting the best outcome for herself with this new attorney. Taking the time and energy to file a bar complaint and worrying about the NDA is not in her best interest right now she and you should not be focusing on this. It takes a lot of energy to go through family court manners, and she doesn’t need this distraction plus, it could make her look bad if she files a bar complaint.

As her friend, you should not be encouraging her to focus on this. Quite the opposite.

[Anonymous]

Anonymous wrote:I don’t know the answer to your question about the ethical violation. But right now, your friend needs to focus on getting the best outcome for herself with this new attorney. Taking the time and energy to file a bar complaint and worrying about the NDA is not in her best interest right now she and you should not be focusing on this. It takes a lot of energy to go through family court manners, and she doesn’t need this distraction plus, it could make her look bad if she files a bar complaint.

As her friend, you should not be encouraging her to focus on this. Quite the opposite.

Op here. I haven’t said a word to her about it. She let me know of the result of their meeting and in the back of my head I had this nagging thought that it didn’t seem right. As I noted, her current attorney is rightly focused on moving forward to clean up the mess made. That is in fact where her energies are right now,

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

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.

I don't think there is anything obvious here. Bar complaints are a pain and take away from billing. Their NDA is explicitly comprehensive, but that doesn't mean they believe they are at risk of an adverse finding. What I wonder is why the client did not seek alternative representation rather than continuing with someone they didn't trust.

I also don't think you can chalk up an adverse outcome to either bad lawyering or ineffective mentoring. I rarely hear of a family law dispute where anyone is happy.

It sounds like OP's friend did trust the attorney but the attorney blew it during the trial. Presumably some of this was discussed prior to court and if the attorney talked about entering evidence before court but didnt get it entered in court it certainly suggests an error. If it were a more experienced attorney I would give them the benefit of the doubt but a brand new attorney raises questions.

[Anonymous]

OP, NDA is not enforceable in this situation and you should be able to file a complaint.

In addition, you have a very strong case for malpractice and their insurance would cover all the damages.

[Anonymous]

IMO bar complaints are for actual bad behavior, like fraud, or for incompetence that indicates you shouldn't practice anymore. There no really good reason to file one about a young attorney who got over her skis where the lax supervising partner had to cough up money as a result - that is a self-fixing scenario already.

Whoever is interested in filing a complaint (sounds like it's you, more than your friend) should really think about what they're going to get out of that. They already got money. The attorneys are definitely embarrassed. It's not likely to happen again to someone else, because of the money and embarrassment. So what is the goal?

[Anonymous]

Anonymous wrote:OP, NDA is not enforceable in this situation and you should be able to file a complaint.

In addition, you have a very strong case for malpractice and their insurance would cover all the damages.

Malpractice is very difficult to show for legal matters. Probably need the new attorney to get a better result to even begin to think about malpractice.

[Anonymous]

If they are getting a partial refund, I would just move on. The kid was brand new.

I would focus on my own family in family court.

I often hear people blaming the lawyer for the outcome. It may be true. Don’t understand why they didn’t ask for a new lawyer during the process.