January 01, 2014

Scruples: Threatening an Adversary

This discussion of the rules of professional conduct examines the border between ethical and unethical threats.

Michael Downey

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When the last column ended, Ethox reassured Paradox, “At least you didn’t write Nemesis a letter threatening ethics charges or claims you ultimately could not back up. After all, that could be a whole different ethics problem—for you.”

Paradox looked surprised. “Isn’t it always unethical to make the threat?”

“Not necessarily,” Ethox responded. “The old ABA Code of Professional Responsibility prohibited most threats. A disciplinary rule, DR 7-105, stated that a lawyer ‘shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.’”

Paradox interrupted, “That’s what I thought!”

“But that provision was omitted when the ABA Model Rules of Professional Conduct were adopted about 30 years ago,” Ethox finished. “Instead, the ABA—and many other ethics authorities—now distinguish between appropriate, ethical threats and inappropriate, unethical ones.”

“How can a threat be appropriate?” Paradox was interested.

“Well,” Ethox paused, “suppose your client takes my client’s car. My client wants your client arrested, but agrees I can try to get the car back first. I call you and say, ‘Have your client return my client’s car by noon tomorrow, or we will contact law enforcement.’”

“Definitely a threat,” Paradox quipped.

“Yes, but this is generally considered an appropriate, ethical threat,” Ethox answered. “The threat is directly related to the potential underlying civil claim for conversion of the car. Also, the statement would not constitute extortion or violate Model Rule 8.4, 4.1, 4.4, or 3.1.

“ABA Formal Opinion 92-363 offers a good explanation of what is a proper, ethical threat,” Ethox continued. Opening a book of formal opinions, Ethox located Opinion 92-363. “This Opinion says a lawyer may use the ‘possibility of presenting criminal charges against the opposing party in a civil matter to gain relief for her client, provided that the criminal matter is related to the civil claim, the lawyer has a well-founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process.’

“Lawyers can make inappropriate, unethical threats,” Ethox warned. “My favorite example is discussed in North Carolina State Bar Formal Ethics Opinion 3 (2005), which found it unethical for defense counsel to pressure a plaintiff to settle a personal injury claim by threatening to report the plaintiff for immigration violations.”

“That does sound like extortion,” Paradox responded.

“Yes. The North Carolina Bar concludes such a threat would at minimum violate Rules 4.4 and 8.4,” Ethox responded. “And the Bar found no valid basis to distinguish between a threat of reporting unrelated criminal conduct and a threat of reporting unrelated immigration status.”

“Does the same law apply to threats of disciplinary prosecution?” Paradox asked. “Don’t lawyers have a duty to report?”

“Again, a threat of disciplinary prosecution is not expressly prohibited, but it would often be inappropriate,” Ethox answered. “ABA Formal Opinion 94-383 provides extensive guidance and suggests two circumstances when threatening a disciplinary complaint would be inappropriate. First, when a lawyer has a duty to report another lawyer under Model Rule 8.3, the lawyer cannot make a threat—the lawyer must simply report.”

“Okay,” Paradox agreed.

“In other circumstances,” Ethox read from ABA Formal Opinion 94-383, “a lawyer ‘must avoid making an extortionate, fraudulent or otherwise abusive threat which would violate the criminal law of the governing jurisdiction or restrictions contained in the Model Rules.’ Otherwise, the lawyer may violate Rules 3.1, 4.1, 4.4, or 8.4(b) or (d).”

“Wow,” Paradox answered, “this is complicated. Do you mind if I borrow Opinion 94-383?”

“Not at all,” Ethox handed Paradox the book. “I think you will find it interesting reading.”

Michael Downey

The author is with Armstrong Teasdale LLP, St. Louis. He also teaches legal ethics at Washington University School of Law.