The Association of the Bar of the City of New York Committee on Professional Ethics’ June 2015 Formal Opinion 2015-5 addresses “whether—and under what circumstances—[attorneys] are ethically permitted to threaten another lawyer with disciplinary charges.” The committee warns, “[a]n attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct.” Even though the committee concludes that a disciplinary threat does not violate New York Rule 3.4(e)—because that rule addresses only threats of criminal charges—the committee cautions that a disciplinary threat would be subject to other rules: A threat must be made in “good faith belief,” (Rules 3.1, 4.1 & 8.4), reporting the violation must not be mandatory, (Rule 8.3(a)), the threat must have “substantial purpose other than to embarrass or harm another,” (Rules 3.1(b) & 4.4(a)), and the threat must not violate substantive law “such as criminal statutes that prohibit extortion,” (Rules 3.4(a)(6) & 8.4).
The committee begins by highlighting the New York Rules’ purpose “to provide a framework for the ethical practice of law.” The committee then states that the ethics regulatory system depends primarily on understanding and willingness to comply, “secondarily on . . . peer and public opinion,” and lastly upon “disciplinary proceedings,” “where necessary.” The disciplinary system, the committee observes, relies on “mandatory reporting” for “certain types of ethical violations” as “[o]ne of several tools” for enforcement, but “[s]hort of reporting . . . , . . . many attorneys are uncertain of their obligations when they perceive that another lawyer has violated the disciplinary rules.” Hence, the committee notes, the question persists of when “threaten[ing] another lawyer with disciplinary charges” would be “ethically permitted.” The committee clarifies “threat” not to mean “merely advising another lawyer that his [or her] conduct violates a disciplinary rule,” but rather a threat includes an ultimatum requiring “compli[ance] with a particular demand.”
The committee finds that New York Rule 3.4 “arguably comes the closest to addressing this issue, as it prohibits lawyers from threatening ‘to present criminal charges solely to obtain an advantage in a civil matter.’” However, because “it is silent” on “disciplinary charges,” the committee concludes that “disciplinary threats do not violate Rule 3.4(e).” The committee distinguishes Rule 3.4 from other jurisdictions’ rules that expressly ban threats of criminal and disciplinary charges. The committee also cites the Committee on Professional Ethics for the New York State Bar Association’s Ethics Opinion 772 (2003) on Rule 3.4’s predecessor, finding disciplinary threats valid for obtaining the return of client property. While the committee acknowledges contrary authority that found Rule 3.4’s predecessor banned disciplinary threats, it finds that Rule 3.4’s “plain language . . . should govern.”
“Although disciplinary threats do not violate Rule 3.4(e),” the committee warns that its conclusion is no “unfettered license”: “an attorney who contemplates making such a threat should carefully consider whether doing so violates other Rules.”
For instance, the committee finds disciplinary threats banned where Rule 8.3(a) mandates reporting “actual knowledge” of an offense raising “a substantial question [of a] lawyer’s honesty, trustworthiness, or fitness as a lawyer.” For discretionarily reportable grievances, “[d]epending on the circumstances, such threats may be consistent with a disciplinary system that is based, at least in part, on self-regulation”: “it may be appropriate to educate the lawyer about the violation and give . . . an opportunity to change [the] conduct . . . [and] to remedy the harm.”
The committee also warns that disciplinary threats are prohibited “absent a ‘good faith belief.’” “Such baseless threats,” the committee warns, would violate several Rules, including “multiple provisions of Rule 8.4” (prohibiting “conduct involving dishonesty, fraud, deceit or misrepresentation . . . “), Rule 4.1 (prohibiting knowingly false statements to third persons during client representation), and “may also violate Rule 3.1(a)” (prohibiting false material factual statements).
Moreover, the committee cautions that Rules 3.1(b) and 4.4(a) ban threats lacking “substantial purpose other than to embarrass or harm.” The committee warns that “[t]hreatening to file a disciplinary complaint against an adversary . . . to gain a strategic advantage [can] violate this rule.” By example, the committee finds that “the goals of the disciplinary rules are [not] served when an attorney ‘uses a disciplinary threat improperly to create a conflict of interest between another lawyer and his client.” Rather, “[t]here are legitimate options available . . . to address . . . misconduct, including seeking sanctions or disqualification.”
Lastly, the committee reiterates: Disciplinary threats may violate substantive law, particularly regarding extortion. The committee warns that knowingly illegal conduct would reflect adversely on lawyerly fitness and prejudice the administration of justice, violating Rules 3.4(a)(6) and 8.4.