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.

Threats Against Opposing Parties and Counsel

Threats are proper where they outline your future course of action and are based on your client’s lawful rights (or your own lawful rights if you’re prone to conflict in your personal life) and strike to the merits of the dispute. They are not proper when you threaten to take legal action against your opponent in a collateral matter or forum to extort an advantage in the original dispute.

Threats against others are primarily governed by the ethical rules that address fairness to opposing parties and counsel and conduct that is prejudicial to the administration of justice.

Threats of criminal prosecution. To paraphrase the rule, an attorney cannot threaten criminal prosecution solely to gain an advantage in civil litigation.

A watchful lawyer can toe the line and make threats of criminal prosecution. If it is going to be done, it should be done cautiously and with great forethought, and it should be put in writing so that your opponent cannot misquote you in the grievance.

It is not per se unethical for a lawyer to threaten to pursue criminal charges against an adverse party when the criminal matter is related to a civil matter. Utah State Bar Ethics Advisory Opinion Comm., Op. 03-04 (2003). It becomes unethical if it is used for extortion, if the lawyer does not have a reasonable belief that law or fact warrants the charges, or if it is abusive of a witness. An attorney may present a criminal complaint while also pursuing a civil action against the same defendant so long as it is not “solely” motivated by attempting to gain an advantage in the civil matter. Conn. Bar Ass’n Prof’l Ethics Comm., Informal Op. 98-19 (1998).

If a lawyer acts in good faith and without an intent to harass, he or she can advise an opposing party of possible criminal sanctions or warn of the possibility of criminal prosecution, even if it is done to assist in representing a client’s rights in civil litigation. State Bar of Mich., Standing Comm. on Prof'l & Judicial Ethics, Op. RI-78 (1991).

It is proper to threaten an adversary that “unless prompt and satisfactory settlement is reached ‘all available legal remedies will be pursued.’” State Bar of Cal. Comm. on Prof’l Responsibility & Conduct, Formal Op. 1991-124 (1991). “This language, alone, is not an overt threat to present criminal or administrative charges to obtain an advantage in the civil dispute” in violation of California Rule of Professional Conduct 5-100 or ABA Model Code of Professional Responsibility DR 7-105(A).

Now let’s discuss what is improper. The criminal justice system is not intended to be a forum for litigants to punish tortfeasors in order to get more money in a civil settlement. Attempting to use the criminal system in this way is an abuse of process and prejudicial to the administration of justice. Further, it can “diminish public confidence in our legal system.” Ill. State Bar Ass’n, Op. 7-21.

Where there is a sufficient basis to report a criminal offense, a lawyer or the client should do it but only if the motivation is primarily to achieve the ends and goals of the system to punish the offender for his or her crimes and, ideally, for there to be justice for the victim and society. If you represent the victim, restitution may be an added benefit. If a lawyer’s goal is to extract a higher settlement in a civil case by pressing charges and then offering assistance to get the charges dropped, the lawyer has wandered down the wrong path.

Here are a few examples of unethical threats, which arbitrarily come from New York; most of them constitute blatant extortion:

  • “Unless you show some substantial evidence of your willingness to compensate Miss Horn [the attorney’s client] for her injuries, I shall have no alternative but to immediately criminally prosecute you for assault against my client. In addition to that I shall institute civil action for the amount of the damages which Miss Horn has suffered.” In re Hyman, 226 App. Div. 468 (1929).
  • Unless money was paid immediately, the attorney “would present the matter to the district attorney upon a charge of larceny and embezzlement.” In re Beachboard, 263 N.Y.S. 294 (N.Y. App. Div. 1933).
  • In a letter to a workman, a lawyer demanded the return of a sum of money or he would “have a warrant issued for [the workman’s] arrest” and stated, “you will return the money or go to jail.” In re Glavin, 107 A.D.2d 1006–7 (1985).

Threats of grievances. Unlike threatening criminal prosecution, threatening to file a grievance and report another lawyer’s misconduct (regardless of whether it is done to gain an advantage in civil litigation) should never be done. An attorney should file a grievance if he or she is aware that another attorney has violated the rules. N.Y. City Bar Assn. Comm. on Prof’l Ethics, Formal Op. 2015-5 (2015). It should not be threatened. If there is merit to proceed with a grievance, just file it and let the process take its course. It is permissible to inform another lawyer of ethical misconduct, but misconduct must be reported when it raises a substantial question of an attorney’s character, honesty, or fitness to practice law.

An attorney may file a licensing complaint against an adverse party pending resolution of a separate civil matter if there is a legitimate basis to do so. State Bar of Cal. Comm. on Prof’l Responsibility & Conduct, Op. 1983-73 (1983). An attorney may not threaten to present administrative action to gain an advantage in a separate civil action. “The fact that an attorney may have an ulterior purpose of dubious legitimacy should not negate the weight and legitimacy of a coexisting proper objective.” An attorney may inform opposing counsel of a client’s intention to bring administrative charges, but there is a definite risk that it will be interpreted as an implied or veiled threat in violation of California Rule of Professional Conduct 7-104 (threatening criminal, administrative, or disciplinary charges).

Threats by prosecutors. Prosecutors, like the rest of us mortals, are bound by the rules and precluded from using their power to obtain personal benefits or protect law enforcement from civil liability. A prosecutor cannot threaten someone in her private life with criminal prosecution. In re Tanzanika Q. Ruffin, 54 So. 3d 645 (La. 2011).

A prosecutor can threaten additional charges if a defendant refuses to accept a plea agreement. Arizona v. Dominguez, 130 Ariz. 498 (1981); McMahan v. Indiana, 269 Ind. 566 (1978). Filing additional charges supported by probable cause is within the discretion of the prosecutor and does not do more than present the defendant with the unpleasant alternatives of forgoing trial or facing charges. Wisconsin v. Johnson, 232 Wis. 2d 679 (2000). Adding charges, in and of itself, does not give rise to a presumption of prosecutorial vindictiveness. Washington v. Korum, 157 Wash. 2d 614 (2006). Increasing charges may violate due process where the fear of prosecutorial vindictiveness deters a defendant’s exercise of a fundamental right. Florida v. Wilkins, 534 So. 2d 705 (1988).

There is mixed authority on a prosecutor’s ability to condition a plea on a stipulation to probable cause. A prosecutor cannot condition a plea agreement on a stipulation that there was probable cause for the defendant’s arrest in order to relieve the arresting police department from civil liability. State Bar of Cal. Comm. on Prof’l Responsibility & Conduct, Op. 1989-106 (1989).

A prosecutor’s offer to dismiss a colorable criminal action in exchange for a release from civil liability is tantamount to a threat to continue the action if the defendant will not give such a release. There is often an imbalance of power between the prosecution and the individual defendant. The nature of this relationship makes it difficult to consider a release-dismissal agreement by the same standards as other settlement agreements.

Id.

If a prosecutor were to condition a dismissal of charges on the waiver of redress for a civil action against a third party (e.g., police officers), this would constitute conduct prejudicial to the administration of justice because of the great power imbalance between the prosecutor and the defendant. S.C. Bar Ethics Advisory Comm., Op. 05-17 (2005).

Conversely, in Oregon it is permissible for a prosecutor to condition a plea agreement on the defendant waiving any civil claims against the police officers and governmental entities. Or. State Bar Legal Ethics Comm., Formal Op. No. 2005-113 (2005). The committee opined that a prosecutor could also condition a plea agreement on the resolution of a civil forfeiture proceeding. The committee found that such a condition would not violate Rule 3.4(g) (threaten to present criminal charges) or Rule 8.4(a) (conduct that is prejudicial to the administration of justice) as such conditions would not constitute threats to present charges and, further, such a resolution could potentially provide a “just” result because it would resolve all connected matters concurrently.

Threats that are prejudicial to the administration of justice. The Oregon Supreme Court established a test for deciding whether a threat is prejudicial to the administration of justice. It is as follows:

First, the accused must have engaged in conduct, that is, performed, or failed to perform, some act.

Second, that conduct must have occurred in the context of the administration of justice, that is, during the course of some judicial proceeding or a matter directly related thereto. The conduct may relate to the procedural functioning of the proceeding or to the substantive interest of a party in the proceeding.

Third, the conduct must have been prejudicial in nature—it must have caused, or had the potential to cause, harm or injury.

In re Smith, 848 P.2d 612 (Or. 1993) (internal citations and quotation marks omitted).

Here are some examples: A lawyer cannot threaten a doctor to write a favorable medical report or risk being sued. When Oregon attorney Rex Smith represented a claimant in a workers’ compensation case and the claimant was referred by the insurer to a doctor for a defense medical exam, Smith wrote a letter to the doctor threatening that if his medical opinion differed from that of the claimant’s treating chiropractor and resulted in the claimant being forced to return to work and then hurting himself, Smith would sue the doctor. The doctor withdrew because he did not want to risk being sued. The Oregon Supreme Court found that this was prejudicial to the administration of justice.

A lawyer cannot threaten to kill opposing counsel. Following a contentious deposition, defense attorney Robert Bonnaffons made racist comments toward plaintiff’s attorney Nicolas Estiverne, and in response, Estiverne suggested that they step outside and settle it “man to man” and then got a handgun and threatened to kill Bonnaffons. In re Estiverne, 741 So. 2d 649 (La. 1999). The Louisiana Supreme Court found that the threat violated Rules 4.4 (respect for rights of third persons) and 8.4 (misconduct for criminal act) of the Rules of Professional Conduct and indicated that disbarment has been imposed in cases where attorneys had actually shot another person; as that was not the case in this matter, the court suspended Estiverne for one year and one day.

A lawyer cannot threaten deportation to gain an advantage in civil litigation. N.C. State Bar Ethics Comm., 2005 Formal Op. 3 (2005). Under the question for this ethics opinion, the immigration status of the party was completely unrelated to the civil dispute. While the rule prohibiting threats of criminal prosecution (North Carolina Rule of Professional Conduct 7.5) was not directly applicable, the North Carolina State Bar Council found that threatening immigration was not distinguishable from a criminal threat (a Rule 7.5 violation).

A lawyer may threaten to file a complaint against a stock broker, who stole money, with a regulatory agency such as the New York Stock Exchange when a jurisdiction, such as New York, has an ethical rule precluding threatening to present criminal charges solely to gain an advantage in civil litigation, but the jurisdiction lacks any rule precluding threatening to file a grievance or other administrative complaints. N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 772 (2003).

Threats Against Clients

Lawyers need to stop threatening clients for not paying their fees.

Threatening a client or former client should typically be avoided at all costs, especially threats to retaliate against a client by filing lawsuits or by withdrawing lawsuits filed on the client’s behalf. Threats against clients should be limited to terminating an engagement agreement for nonpayment or other contractual grounds. If a client doesn’t pay, send the client an invoice. If the bill is small, forget about it (that’s just some unsolicited advice). If the bill is large, call the client and offer a payment plan. If that still doesn’t work and the bill is huge, then just file suit. Threatening isn’t going to compel a client to pay. If the client could pay, he or she probably would have. To avoid this situation entirely and to be able to pay the light bill and malpractice insurance, lawyers would be well advised to quit messing around and insist on getting the fee up front.

Where an attorney threatens a client with a defamation lawsuit if that client does not withdraw a grievance, such conduct is not only unprofessional but also unethical. Fla. Bar v. Gallagher, No. SC10-802 (Fla. Aug. 6, 2010) (referee opinion). Furthermore, “an individual who files a complaint against an attorney is afforded absolute immunity from a retaliatory defamation action by the complained-against attorney.” Id. (citing Tobkin v. Jarboe, 710 So. 2d 975 (Fla. 1998)).

In a dispute with a client over payment of a fee, a Cincinnati lawyer (Hartke) threatened the client with criminal prosecution if she did not pay his fee. Cincinnati Bar Ass’n v. Hartke, 132 Ohio St. 3d 116, 969 N.E.2d 1189 (Ohio 2012). The client filed a grievance about Hartke’s conduct with the Cincinnati Bar Association. Id. at 117. The applicable disciplinary board found that his conduct was a violation of Rule of Professional Conduct 1.2(e) as he threatened to present criminal charges solely to gain an advantage in a civil matter. Id. at 117–119.

In a case involving a flat-fee agreement (providing for representation through trial), the attorney attempted to renegotiate the fee prior to trial, and the client refused. The court permitted the attorney to withdraw, but the attorney did not refund the fee or part of it. The conduct was found to be unethical. Attorney Grievance Comm. of Md. v. Lawson, 401 Md. 536, 933 A.2d 842 (Md. 2007). The court concluded that “lawyers must not be permitted to threaten to abandon clients whenever it strikes them that they are in a position to renegotiate fees.” Id. at 571.

After commencing representation, a lawyer may renegotiate a fee if there is a change in circumstances or for other good cause. N.C. State Bar Ethics Comm., Op. RPC 166 (1994) (citing Rule of Professional Conduct 2.6). The lawyer may not threaten to abandon the client to cut his or her losses or coerce a higher fee.

Over an unpaid bill, an Arizona attorney, Dennis Wilenchik, wrote a series of obscene emails calling his client a “drug dealer” and “a loser,” threatening to sue, and stating that he “looked forward to the many nights and mornings when you think of my name and squeal”—a reference to a brutal male rape scene in the 1972 horror movie Deliverance. Robert Anglen, Lawyer Avoids Serious Consequences for Threatening Client, Republic, Feb. 23, 2015, www.azcentral.com/story/money/business/consumer/call%2012%20for%20action/2015/02/21/lawyer-avoids-serious-consequences-threatening-client/23825095/. The client filed a report with the police and a grievance with the bar. The Arizona Supreme Court’s discipline committee found that his conduct violated the rules and admonished him. In re State Bar of Ariz. v. Wilenchik, No. PDJ 2015-9011 (Ariz., Office of Presiding Disciplinary Judge, Jan. 29, 2015).

A lawyer cannot threaten to withdraw a client’s bankruptcy petition and force the client to start all over again unless the client pays an outstanding bill. In re Idaho State Bar v. Joseph Williams, 893 P.2d 202 (Idaho 1995).

Threats Against the Tribunal

It is always a bad idea to threaten the judge, magistrate, commissioner, hearing examiner, or any other court official. It is OK to argue with the court or disagree or even report misconduct, but a lawyer should never threaten to retaliate for an adverse ruling in any way other than by appealing it.

An attorney may not threaten a judge with filing a judicial grievance complaint in an attempt to sway that judge’s decision. N.Y. Advisory Comm. on Judicial Ethics, Op. 13-61 (2013).

It is improper for a prosecutor to threaten a judge with filing a motion to substitute the judge solely in an effort to get the judge to reconsider his or her ruling. Ill. Judges Ass’n Judicial Ethics Comm., Op. 03-04 (2003). In Illinois, the state and the defendant both get one motion to substitute a judge in every case. This is provided for by statute. However, the Judicial Ethics Committee found that where a prosecutor threatens to file such a motion solely in order to get a judge to change his or her ruling, it is prejudicial to the administration of justice and a violation of the Illinois Rules of Professional Conduct.

The Reverse Threat: Non-Reporting Agreements

Just as it can be improper to threaten prosecution or grievances, it can be improper to agree not to pursue them. Non-reporting provisions in legal malpractice cases to prevent a party from filing a grievance are against public policy, unenforceable, and unethical. However, when it comes to non-cooperation provisions in a civil settlement to avoid criminal prosecution, they are generally acceptable.

An agreement to withdraw or forgo filing a grievance with the bar is not enforceable as it is contrary to public policy. Fla. Bar v. Fitzgerald, 541 So. 2d 602, 605 (Fla. 1989); Fla. Bar v. Frederick, 756 So. 2d 79 (Fla. 2000). Furthermore, if counsel is involved in negotiating a settlement in which the defendant attorney is accused of an ethical violation, such as in a malpractice case, the respective attorneys could be in violation of their ethical obligations for failing to report unethical conduct that affects the defendant attorney’s character, fitness, and ability to practice law. Conn. Bar Ass’n Prof’l Ethics Comm., Informal Op. 15-01 (2015). “Attempting to bargain away a disciplinary complaint also constitutes conduct that is prejudicial to the administration of justice.” In re Discipline of Eicher, 661 N.W.2d 354 (S.D. 2003) (internal citations and quotation marks omitted).

Where a client sues his former lawyer over a fee dispute and alleges breaches of the rules of professional responsibility in the complaint, and the parties reach a settlement agreement, it is improper to condition the settlement on not filing a grievance against the attorney. Conn. Bar Ass’n Prof’l Ethics Comm., Informal Op. 15-01 (2015).

An attorney may not threaten to present criminal charges to gain an advantage in litigation; however, as part of a settlement agreement in a civil suit, an attorney may agree to a condition that the adversary not bring a potential criminal matter to the attention of law enforcement (non-reporting provision). N.Y. City Bar Comm. on Prof’l Ethics, Formal Op. 1995-13 (1995). The committee did state that such provisions are ethically permissible but only where the defendant in the civil suit, who is also the individual with potential criminal exposure, is the party to propose such a condition as part of the settlement agreement.

A North Carolina ethics opinion found no such restriction and, instead, opined that an attorney may participate in settlement negotiations where the plaintiff would agree to a non-reporting provision so long as the amount the plaintiff victim would get does not exceed that allowed by law, and the agreement does not constitute the criminal offense of compounding a crime, is not otherwise illegal, and does not contemplate the fabrication, concealment, or destruction of evidence (including witness testimony). N.C. State Bar 2008 Formal Ethics Op. 15 (2008).

Conclusion

A threat is proper, and fair, where an attorney threatens to do something lawful (and not criminal) that is within the lawyer’s or client’s lawful rights and the lawyer is doing so to advance that lawful interest to redress a civil or criminal wrong. If the dispute is a criminal case, a lawyer can threaten to file motions or take a case to trial in order to attempt to gain an advantage over the opponent. A prosecutor can threaten additional charges, so long as the evidence supports them, in order to get a defendant to plead. A firm ethical line exists at the border of the venues and is designed to protect the system from abuse. Attorneys cannot threaten to exploit an advantage in one forum to gain leverage in another forum. Attorneys should be prudent in their use of threats to achieve their personal or their clients’ goals.

Noah Jon Kores

The author is a litigator based out of Bridgeport, Connecticut.