Ethics Tip

Threats may bring Regrets
July 2014

Threats of criminal action on order to gain an advantage in a civil matter have historically been disfavored in legal practice. DR 7-105(A) of  the ABA Model Code of Professional Responsibility (Withdrawn in 1983) outright prohibited them stating:

A lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.

Ethical Consideration 7-21 of the Model Code gave this rationale:

The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.  Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process, further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private suits is impaired.  As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system

The substance of DR 7-105’s prohibition has been interpreted differently by different states; and their views of what exactly constitutes a threat varies.  Threatening an action is sometimes difficult to distinguish from simply informing an opposing party of a legitimate criminal charge.   Some states have made distinctions between “threatening” as opposed to “notifying,” or “informing”, while others looked for evidence of the lawyer’s intent to determine if the lawyer's purpose in making the threat was improper.

Some state statutes require lawyers to notify opposing parties of potential criminal liability such as for example statutes that regulate collection practices.  See, e.g. South Carolina Opinion 07-06 (2007) (lawyer may send the statutorily prescribed notices even though they contain threats of criminal prosecution.)  However, threatening can still be distinguished from merely providing statutory notice.  In  Florida Bar v. Suprina, 484 So. 2d 1245 (Fla. 1986) the court reprimanded the lawyer who sent letter stating that unless paid, he and his client would “do our best to have the court give you the maximum sentence both in court and in your pocketbook”.

The drafters of the ABA Model Rules (the ABA Commission on Evaluation of Professional Standards, also known as the Kutak Commission) decided not to carry forward DR 7-105(A) into the Rules when they were adopted in 1983.  Their rationale for doing so was that other ethics rules including Rules 3.1 Meritorious Claims And Contentions, prohibits assertion of frivolous claims; 4.1  Truthfulness In Statements To Others, and 4.4 Respect For Rights Of Third Persons, were adequate to prohibit abuses that can arise when lawyers make such threats.  

Even though the ABA Model Rules do not retain the explicit prohibition, bear in mind that nearly half of the states have retained the substance of DR 7-105 in their respective rules of professional conduct.  For further information on threats including a survey of state rules of professional conduct that relate to this issue, See the chapter entitled Threatening Prosecution (last updated in 2012) as it appears at page 71:601 of the ABA/BNA Lawyers’ Manual on Professional Conduct.

ABA Ethics Opinions

In ABA Formal Ethics Op. 92-363 (1992), the ABA Standing Committee on Ethics and Professional Responsibility addressed how such threats were to be interpreted under the Model Rules in light of DR 7-105’s removal from the Rules.   The Opinion concluded that a lawyer may make threats against a civil opponent so long as the criminal matter is related to the civil claim, the claim is made in good faith and is supported by the law and facts.

In Formal Opinion 94-383 (1994), The ABA Committee considered whether a lawyer may threaten disciplinary action against another lawyer and concluded that threatening to file a misconduct complaint against the opposing lawyer in order to obtain an advantage in a civil case is “constrained” by the Model Rules—as well as by extortion statutes—even though not expressly addressed. Such threats “may violate one or more of Rules 8.4(b) Misconduct, 3.1, 4.1, 4.4 and 8.4(d).”   Some jurisdictions specifically mandate against this threat, when made to gain a civil advantage, in their ethics rules. 

State Bar Opinions

State bar ethics committees have considered the propriety of threats in a wide variety of contexts.  As stated in the Lawyers’ Manual,

…Other types of threats , including threats to file administrative complaints, threats to report suspected tax violations, threats to report the professional misconduct of persons other than lawyers, and threats to report an individual's undocumented immigration status to authorities, may also fall within the range of various jurisdictions' prohibitions. See, e.g., State ex rel. Counsel for Discipline v. Lopez Wilson, 634 N.W.2d 467, 17 Law. Man. Prof. Conduct 640 (Neb. 2001) (immigration); North Carolina Ethics Op. 2005-3 (2005) and North Carolina Ethics Op. 2009-5 (2009) (immigration); San Diego County Ethics Op. 2005-1 (2005) (ethical bar against threats of criminal or disciplinary action extends to such communications that are directly between client and opposing party but originate with lawyer); South Carolina Ethics Opinion 11-09, (2012) (tax). They may also be found to constitute criminal acts.

Compare Indiana Ethics Op. 1 of 2008 (2008), a digest of which states as follows:

…lawyer may threaten to report real estate broker to administrative or professional licensing agency without violating ethics rules as long as conduct to be reported is related to underlying suit, lawyer has well-founded belief that conduct violates agency's regulations and report is warranted, lawyer does not state or imply ability to improperly influence agency or officials, and amount sought is reasonable approximation of amount due as restitution..  71 Law Man Prof Conduct 607

See Also New York State Ethics Op. 772 (2003)

…lawyer may threaten to file administrative or disciplinary complaint against broker as long as one purpose of threat is to obtain information about broker's conduct and sole purpose is not to obtain refund to client of disputed funds.  71 Law Man Prof. Conduct 607

Again, an excellent source for researching and locating these opinions is the ABA/BNA Lawyers’ Manual on Professional Conduct that contains digests of thousands of state bar opinions.  Further information about the Lawyers’ Manual is located here.  

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Remember that there is considerable variation in the state rules of professional conduct on this issue, and that even if there is no specific rule that prohibits threats, courts and state bar ethics committees may interpret other rules and state statutes as prohibiting them in certain contexts.  As always, check your local rules, statutes and ethics opinions.  Your state or local bar may also be able to provide guidance.

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