March 01, 2017

The Ethics of Threatening

Many lawyers use threats as part of negotiation, but that can be risky. Here's how to avoid wandering into the quagmire of ethical misconduct.

Noah Jon Kores

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Threats are good. Lawyers love to threaten. Every lawyer I know loves it. It’s one of the most effective ways to negotiate. Like a fast one-two punch, a good threat can knock your opponent down. Boom, you win.

In litigation, it could be easy to get carried away in the fun like my three-year-old at the dinner table, who starts throwing food at his brother because he thinks it’s “so funny.” This is especially true in contentious cases. However, this is when it is evermore important to watch your words so you don’t wander into the quagmire of ethical misconduct.

It might seem obvious that you can’t threaten to file a grievance against another lawyer solely to gain an advantage in civil litigation. It is in black and white in the rules of professional conduct in many states, although not all of them. In Connecticut, for example, it is still improper because it is prejudicial to the administration of justice and a violation of a lawyer’s duty to report misconduct. If a lawyer can threaten to file a grievance, then ispo facto the attorney has knowledge of an ethical violation and should report it.

I recount some of the tribulations of attorneys not to celebrate the poor decisions of our colleagues but to illustrate the ethical boundaries of propounding threats.

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