LEO: Attorneys' Fees - Settlement Negotiations LE Op. 1309

 

Attorneys' Fees - Settlement Negotiations - Federal Civil Rights

Action - Threatening Disciplinary Charges: Filing Motion for

Award of Plaintiff's Attorneys' Fees and Opposing Counsel

Requesting Advisory Opinion on Propriety of Action.

 

October 19, 1990

 

You have advised that you represent the plaintiff in an action filed

pursuant to 42 U.S.C. 1983 in the United States District Court for the

Eastern District of Virginia. While the case was on appeal to the United

States Court of Appeals for the Fourth Circuit, the parties entered into

and executed a written settlement agreement and a stipulation of

dismissal. You indicate that your position vis-a-vis the agreement is that

it did not, and was not intended to, address defendants' liability for

attorneys' fees since you state that there was no negotiation or

discussion of such liability during extensive negotiations over a forty-

three day period related to the terms of the agreement. You inform the

Committee that you have now moved the court to award attorneys' fees

pursuant to the Civil Rights Attorneys' Fees Award Act of 1976, 42 U.S.C.

1988. In opposing this motion, defendants' counsel relies on language in

the stipulation of dismissal that provides for "each party to bear its own

costs" and further argues that the filing of your motion violates the

Virginia Code of Professional Responsibility based on this Committee's

previously rendered LE Op. 536.

 

You further indicate that, in addition to briefing its opposition to the

motion for attorneys' fees, defendants' counsel has also written to

counsel for plaintiff outlining steps defendants intend to take in

response to the filing of the motion. You have provided the Committee with

a retyped, redacted copy of defendants' counsel's letter. Those steps

include seeking an informal ethics advisory Committee opinion as to

whether you have violated your ethical responsibilities in light of LE

Op. 536 and whether defendants' counsel have an obligation pursuant to

DR:1-103 to report plaintiff's counsel's actions. You allege that

defendants' counsel's letter "makes clear that defendants and their

counsel will take no action regarding the ethical issue and will honor the

settlement agreement if counsel for plaintiff withdraw the attorneys' fees

motion."

 

You have provided extensive legal support for several issues on which you

have asked the Committee to render an informal advisory opinion.

 

The first issue upon which you wish the Committee to opine is whether

LE Op. 536 applies to the facts presented to render inappropriate the

filing of a motion for attorney's fees where, you allege: (a) the issue of

plaintiff's right to seek such fees pursuant to 1988 was never raised or

discussed in the parties' settlement negotiations; (b) plaintiff's counsel

never intended to waive that right; and (c) plaintiff's counsel's use of

the phrase "each party to bear its own costs" was intended by counsel to

refer only to "traditional court costs" such as recited in F.R.C.P. 59(d)

and F.R.A.P. 39, and plaintiff's counsel believes that the law in the

Fourth Circuit does not uphold the exclusion of attorneys' fees from the

term "costs."

 

As you have indicated by your extensive legal argument and supporting

case law, the questions you have raised revolve around factual and legal

determinations and disputes and are thus not issues which are disposed of

by the Code of Professional Responsibility and its ethical requirements.

In contrast, in rendering its prior LE Op. 536, the Committee was

presented with an inquiry which recited that an agreement on attorneys'

fees had in fact been reached during settlement negotiations in a federal

civil rights action. The inquiry specifically requested an opinion

predicated on the plaintiff's attorney having agreed to "whatever the

defendant offer[ed] as to attorney[ ']s fees, so as not to hinder in any

way the most advantageous settlement for the client." Thus, the inquiry

presented hypothetical facts which demonstrated that a meeting of the

minds on attorneys' fees had occurred. This Committee is not constituted

to resolve factual disputes since those are legal issues beyond the

purview of the Code of Professional Responsibility. Since, in your facts,

there appears to be a material difference and a legal dispute between the

parties as to the intent of the settlement agreement with regard to

whether the term "costs" refers also to attorneys' fees and whether,

therefore, an agreement was reached on that issue, the Committee declines

to render an opinion on the legal matter. Such a determination must be

made by a finder of fact and may apparently be made by the court of

competent jurisdiction, ostensibly within its ruling on the pending motion(

s) for attorneys' fees.

 

The second issue on which you request the Committee's opinion is whether

defendants' counsel's letter to plaintiff threatens disciplinary

proceedings to gain an advantage in civil litigation and is thus in

violation of DR:7-104. Disciplinary Rule 7-104(A) precludes a lawyer

from presenting, participating in presenting, or threatening to present

criminal or disciplinary charges solely to obtain an advantage in a civil

matter.

 

Assuming that the original letter from defendants' counsel to plaintiff's

counsel exactly parallels the retyped, redacted version, it is apparent to

the Committee that the plain language of the letter indicates an intent

only to proceed immediately to bring the facts of this situation to the

attention of the Legal Ethics Committee of the Virginia State Bar ... and

ask for an informal advisory opinion regarding whether the facts support a

finding of unprofessional conduct ... and whether [they] have an ethical

duty under DR:1-103 ... to report your firm's conduct to the Virginia

State Bar for appropriate disciplinary action.

 

This Committee is of the opinion that an indication of an intention to

request an informal advisory opinion, with the subsequent intent of acting

upon that opinion should the obligatory reporting of misconduct be

indicated, is not violative of DR:7-104 since the rule does not presume

that the request for an advisory opinion is part of the disciplinary

process. As provided in Part I, IV, 610(b) (i) of the Rules of the

Virginia Supreme Court, "[a]n advisory legal ethics opinion of the Bar

concerning contemplated or actual professional conduct of any member may

be requested by any member." A distinctly different, elaborate procedure

is provided in Part I, IV, 613 for the disciplining, suspending, and

disbarring of attorneys. Thus, the Committee opines that defendants'

counsel's request for an informal advisory legal ethics opinion is not

violative of DR:7-104 since it does not threaten disciplinary

proceedings. Having determined that the letter is not such a threat, the

Committee need not reach the question of whether it was made solely to

gain an advantage in civil litigation.

 

Committee Opinion October 19, 1990