A Primer on Threats: When the Ends Don't Justify the Means
A threat is leverage you could use to get what you want. Dictionary.com puts a slightly discordant, even evil ring on the word:
1. a declaration of an intention or determination to inflict punishment, injury, etc., in retaliation for, or conditionally upon, some action or course; menace: He confessed under the threat of imprisonment.
2. an indication or warning of probable trouble: The threat of a storm was in the air.
3. a person or thing that threatens.
It’s easy to take an ultra-cautious – paranoid? -- approach and advise that lawyers should never threaten anyone for any reason. But threats have a legitimate place in law practice. Consider these statements:
“Pay the medical costs my client incurred and the wages she lost after your dog viciously attacked her shin or she will sue you.”
“Remove the three non-operating vehicles parked in your front yard or the homeowners’ association will fine you.”
Assuming these statements have a basis in law or fact – and thus comply with ER 3.1 (meritorious claims and contentions) – and the lawyer intends to make good on the threatened action – so the lawyer doesn’t violate ER 4.1(a) (truthfulness in statements to others) -- they’d probably be OK. The threatened conduct is a legal and logical result if the demanded action is not taken.
Now consider these statements:
“Client, I worked my tail off for you and what do you do in return? You had the gall to give me a bad check for my fees. Deliver a cashier’s check to me ASAP or I will ask for criminal charges to be filed against you for writing that NSF check. Because you know passing a bad check is a crime, right?”
“Opposing counsel, my client knows your client is a drug dealer. If your client doesn’t pony up the money for the car he bought from my client, I will call my ol’ law school buddy who now is the county attorney and we’ll have a little chat about your client’s business.”
“Opposing counsel, withdraw that baseless motion for sanctions you filed against me for not responding to your one stupid discovery request or I will file a bar complaint against you.”
These are bar complaints waiting to happen.
Note: Because the American Bar Association Model Rules of Professional Conduct and the Arizona Ethical Rules involved with this topic are largely identical, I interchangeably cite to “Rule __” and to “ER __” in this article.
Threatening criminal (and other action) against a former client for not paying legal fees
A lawyer of course may sue, and therefore threaten to sue, a former client for not paying legal fees. ER 1.6(d)(4) specifically allows a lawyer to disclose a “reasonably … necessary” amount of information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client….” But threatening other leverage, such as making a criminal complaint or report to immigration authorities, is beyond the pale.
Two Arizona ethics opinions set the stage for whether a lawyer may threaten a former client with criminal charges over the former client’s failure to pay the lawyer’s fees.
First, Ariz. Ethics Op. 91-07 (1991) concluded that a lawyer could threaten a non-client with criminal prosecution as long as the threat does not “run afoul of a specific ethical proscription, or violates a state’s criminal extortion statute.” If the lawyer’s conduct constituted criminal extortion, then that conduct would violate ER 8.4(b) (prohibition on criminal conduct) or ER 8.4(d) (conduct prejudicial to the administration of justice). The opinion added equivocating language about how a threat could be viewed as extortion or “free educational, legal advice” depending on the sender’s intent and the recipient’s perception.
Second, Ariz. Ethics Op. 93-11 (1993) concluded that a lawyer could not file criminal charges against a former client who had written the lawyer an insufficient-funds check for owed fees because to do so would require that the lawyer disclose information relating to the representation in violation of ER 1.6. To extrapolate from this opinion, if a lawyer may not instigate a criminal prosecution against his former client, then the lawyer of course may not threaten to do so.
Against that backdrop, a recent Arizona lawyer discipline case widens the scope of unethical conduct from threatening criminal action against a client over the client’s conduct related to paying the lawyer’s fees to threatening to disclose information that would jeopardize a former client’s existing or potential proceedings unrelated to the collection of the fees.
In that case, the lawyer represented the client on a limited-scope basis at a child-custody-related hearing. The client also had a domestic-assault charge, a criminal probation order and a deportation order. After the child-custody-related hearing, the lawyer made repeated efforts to collect her fees and ultimately obtained a default judgment, which the former client and her husband unsuccessfully attempted to set aside. The lawyer emailed the former client and her husband:
Due to your conduct in completely ignoring your debt to, promises to, and communications from this law firm for 10 months, you are hereby notified that if I do not receive a payment from you by Friday, September 30, 2016, I will be filing felony criminal charges against you under the attached statute and reporting [former client’s] numerous violation[s] … of the conditions of her probation to the probation department. ICE and Vegas law enforcement will be notified.
The “attached statute” referred to A.R.S. § 13-2205, which makes it a crime to defraud judgment creditors.
The disciplinary panel found that the lawyer’s email was “more than a threat, it was a promise to use the information she had gained from her representation to damage her client ... if she did not receive payments.” The panel concluded that the lawyer had violated ER 1.6 (confidentiality) and ER 4.4(a), which prohibits a lawyer from, in representing a client, “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden any other person, or us[ing] methods of obtaining evidence that violate the legal rights of such a person.”
On appeal, the Arizona Supreme Court concluded that the panel erred by finding that the lawyer had violated ER 1.6 because “a threat to disclose confidential information is not an actual disclosure and therefore is not a violation of ER 1.6.”
But the court affirmed the panel’s finding that the lawyer had violated ER 4.4(a), saying:
Respondent acknowledges that the threat to contact the probation officer was improper and the Court likewise finds that the reference to “Vegas law enforcement” and ICE constituted an impermissible threat. The Court agrees with the Panel that ER 4.4 applies in this case where Respondent was representing herself as a judgment creditor, and further finds that the fact that Respondent was due the funds did not constitute a “substantial purpose” excusing the conduct. Although the subjective purpose of collecting a judgment for fees is not forbidden, threats to jeopardize a judgment debtor’s unrelated immigration and criminal proceedings based on information obtained during the scope of representation are impermissible. This Court therefore agrees with the panel that [the] threat to contact probation and ICE authorities in the September 19, 2016 e-mail was sent without substantial purpose other than to “embarrass, delay or burden” the judgment debtors, violating ER 4.4.
Clearly the court concluded that the lawyer should not have threatened to disclose information to the probation office, “Vegas law enforcement” and immigration authorities. But what about the lawyer’s threat to file criminal charges based on A.R.S. § 13-2205, arising out of the client’s conduct failing to pay the lawyer’s fee?
The court’s analysis is somewhat confusing. It cited and quoted from Op. 91-07, without saying whether it agreed with the opinion or whether the lawyer acted unethically by threatening to file charges directly related to the lawyer’s attempts to collect her fees.
Despite that, it made its distaste for a lawyer threatening to file criminal charges against a former client over unpaid fees clear. In assessing the injury to the former client – required for determining the appropriate sanction -- the court said it was “concerned that vague references to report a client’s legal violations in an effort to extract payment threatens the fundamental protection of the attorney-client privilege. Threats of criminal prosecution to collect fees ‘tends to pollute the administration of justice and bring the legal profession into disrepute….’” (Emphasis added.) Later in the decision, when looking at other cases for proportionality, it cited an Oregon case – calling it “a similar case involving an attorney’s letter threatening to press criminal charges if the client did not dismiss a bankruptcy proceeding” – to find that the Arizona lawyer’s violation was knowing, based on her email.
What happened to the lawyer? She argued that her conduct warranted only a reprimand. But the court distinguished “the seriousness” of threatening one’s own client. from out-of-state cases in which lawyers were reprimanded for making threats on behalf of a client. The court affirmed the disciplinary panel’s decision to suspend the lawyer for 90 days and require two years of probation after reinstatement, along with six additional hours of CLE beyond the annual requirement.
Threatening to file criminal charges to gain an advantage in a civil matter not against one’s client
The American Bar Association’s old Model Code of Professional Responsibility expressly told lawyers not to threaten criminal action to gain an advantage in a civil matter. The rule, DR 7-105(A), was clear: “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 explained this prohibition: “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 disputes 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.”
That same clear prohibition did not carry over into the ABA’s Model Rules of Professional Conduct. “The drafters of the Model Rules omitted the DR 7-105(A) prohibition on the basis that it was overbroad, redundant, or both….” Richmond, Saber-Rattling and the Sound of Professional Responsibility, 34 Am. J. Trial Advoc. 27, 29 (2010).
Many jurisdictions that adopted the Model Rules of Professional Conduct incorporated the Code’s DR 7-105(A) language into their rules. See, e.g., Florida Rule of Professional Conduct 4-3.4(h) (“A lawyer must not … present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Others not only have retained the prohibition but have expanded it. Oregon Rule of Professional Conduct 3.4(g), for example, makes it unethical for lawyers to “threaten to present criminal charges to obtain an advantage in a civil matter unless the lawyer reasonably believes the charge to be true and if the purpose of the lawyer is to compel or induce the person threatened to take reasonable action to make good the wrong which is the subject of the charge.” As discussed below, still others have expanded the prohibition to include disciplinary charges.
Arizona had the DR 7-105(A) prohibition until it adopted the new Model Rules of Professional Conduct effective February 1, 1985. It did not carry over the DR 7-105(A) language.
So without a specific rule, may Arizona lawyers threaten to file criminal charges to gain an advantage in a civil matter?
As discussed above in conjunction with whether a lawyer may threaten a client, Ethics Op. 91-07 concluded that a lawyer could threaten criminal prosecution as long as the threat does not “run afoul of a specific ethical proscription, or violates a state’s criminal extortion statute.” That opinion construed a form letter sent by a county attorney’s office that stated, in part, “If you are found to be in contempt for failure to obey a court order, you could be sentenced to jail. You should also be aware that, under Arizona law … a conviction for failure to pay child support is a Class 6 felony punishable by imprisonment.” The opinion concluded that mentioning contempt did not constitute extortion because the contempt alluded to appeared to be civil, not criminal, contempt. But the reference to the criminal statute for failing to pay child support could be viewed as either extortion or “merely some free educational, legal advice” depending on the sender’s intent and the recipient’s perception. In conclusion, the opinion concluded that because it did not know “all of the circumstances,” it couldn’t say whether the letter constituted a threat but said the better practice would be to not refer to the statute.
The next year, the ABA stepped into the rules void and issued ABA Ethics Op. 92-363 (1992). That opinion concluded that a lawyer may threaten to report criminal conduct against a civil opponent as long as the claim is made in good faith; the claim is supported by the law and facts; the lawyer does not attempt to exert or suggest improper influence over the criminal process; and the criminal matter is related to the civil claim.
The first three conditions all are clearly rooted in the rules. For example, if the claim is not made in good faith and supported by the law and facts, it could violate Rule 3.1 (meritorious claims and contentions). If the lawyer suggests improper influence over the criminal process, that could violate Rule 8.4(d) (conduct prejudicial to the administration of justice) and Rule 8.4(e) (stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Ethical Rules or other law).
But what about the condition that the criminal offense be “related” to the civil action? The ABA opinion says the “relatedness requirement” avoids a criminal charge of “compounding” and “ensures that negotiations will be focused on the true value of the civil claim.”
Is the “relatedness requirement” consistent with the Arizona opinion? Yes. In Arizona, A.R.S. § 13-2405 provides that a person commits “compounding” if the person knowingly accepts or agrees to accept any pecuniary benefit as consideration for refraining from seeking prosecution of an offense or reporting to law enforcement authorities the commission or suspected commission of any offense or information relating to the offense.” Violating this statute could be a violation of ER 8.4(b), which prohibits a lawyer from engaging in criminal conduct that “reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” The Arizona opinion said that a lawyer could threaten criminal prosecution only if the threat does not “run afoul of a specific ethical proscription, or violates a state’s criminal extortion statute.” So the “relatedness requirement would avoid criminal conduct, and thus avoid an ER 8.4(b) violation.
Threatening to file a bar complaint against opposing counsel
As with threatening criminal action, neither the ABA Model Rules of Professional Conduct nor the Arizona Ethical Rules expressly tell lawyers not to threaten opposing counsel with a bar complaint. Many jurisdictions that adopted the old Code language (or some version of it) about threatening criminal charges to gain an advantage in a civil matter have expanded that prohibition to include threatening disciplinary or administrative charges. Colorado Rule of Professional Conduct 4.5(a), for example, says that a lawyer “shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.” (Section (b) of the rule also provides a safe harbor if lawyer notifies the other person that the lawyer “reasonably believes” that the other’s conduct violates rules or statutes.)
If Arizona’s rules don’t explicitly prohibit threatening to file a bar complaint, it is unethical?
As with threatening criminal action, yes, ethics opinions say, based on a variety of grounds. ABA Formal Ethics Op. 94-383 (1994) concluded that threatening to file a bar complaint against opposing counsel to obtain an advantage in a civil case is “constrained” by the Model Rules even though not directly addressed. Arizona’s seminal ethics opinion on ER 8.3, Ariz. Ethics Op. 90-13 (1990), stated in a footnote that “any suggestion or appearance of a threat to report used as leverage to gain an advantage, must be avoided,” citing ethics opinions from Maine, New York and Alabama as well as the ABA/BNA Lawyers Manual on Professional Conduct but provided no analysis.
Threatening opposing counsel with a bar complaint has two distinct branches, both based on ER 8.3(a). Under certain circumstances, ER 8.3(a) requires that Arizona lawyers report other lawyers’ ethical violations. Arizona lawyers also may report other lawyers’ missteps even if ER 8.3(a) wouldn’t require them to do so.
If the alleged misconduct that is the subject of the threat would qualify as a mandatory report under ER 8.3
ABA Op. 94-383 concluded that if the alleged misconduct would be a mandatory report under Rule 8.3(a), threatening a bar complaint would be unethical. It tied Rule 8.3(a) to Rule 8.4(a), which provides that it is misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another….”
The ABA opinion reaches its conclusion this way:
In those instances in which a lawyer is required to report the professional misconduct of another, the lawyer's failure to report would itself violate Rule 8.4(a). Similarly, an agreement not to file a complaint would violate Rule 8.4(a) where the filing of a complaint would otherwise be required by Rule 8.3(a). Because an agreement not to file a complaint if a satisfactory settlement is made is the logical corollary of a threat to file a complaint in the absence of such a settlement, we conclude that a threat to file disciplinary charges is unethical in any circumstance where a lawyer would be required to file such charges by Rule 8.3(a).
In other words, if a lawyer is required to report opposing counsel’s alleged misconduct, and then doesn’t report it because the two lawyers have settled a matter, then the first lawyer has violated ER 8.4(a) by failing to report as required. The threat of a required report may not be what the opinion calls a “bargaining point.”
If the alleged misconduct that is the subject of the threat would not be a mandatory report under ER 8.3
Even if the underlying conduct would not be required to be reported, the ABA opinion explains that threatening to file a bar complaint may violate other rules:
If the threat constitutes extortion under criminal law, then making the threat would violate Rule 8.4(b), which says it is misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” (This comports with Ariz. Ethics Op. 91-07, discussed above.)
If the threatened bar complaint has no basis in law or fact, then threatening to file a complaint would violate Rule 3.1, which in part requires a lawyer to have a “good faith basis in law and fact …. that is not frivolous” for bringing or defending a proceeding.
If the lawyer who makes the threat doesn’t intend to actually file a bar complaint, then Rule 4.1 comes into play. Rule 4.1(a) forbids a lawyer from, in the course of representing a client, knowingly making a false statement of material fact or law to a third person.
Threatening a bar complaint also may violate Rule 4.4(a), which prohibits a lawyer from using means that "have no substantial purpose other than to embarrass, delay or burden a third person.” By threatening a bar complaint, the threatening lawyer “introduce[es] extraneous factors” into the opposing opposing party’s assessment whether to settle or proceed with trial, and creates a conflict of interest between counsel and client.
Finally, threatening to file a bar complaint may violate Rule 8.4(d), which prohibits “conduct prejudicial to the administration of justice.”
A lawyer does not violate ER 1.6 by threatening to disclose client information.
In attempting to collect owed fees from a former client, a lawyer cannot threaten to disclose client information to “jeopardize” the former client’s unrelated immigration and criminal proceedings nor can threaten to file criminal charges arising out of the client’s conduct.
Arizona doesn’t have a specific rule that tells lawyers not to threaten criminal action to gain an advantage in a civil matter. But whatever a lawyer threatens could violate some other rule (e.g. ERs 3.1, 4.1, 4.4, 8.4(d)) or could constitute a crime, thus possibly violating ER 8.4(b), which requires only a criminal act, not a criminal conviction.
Arizona doesn’t have a specific rule that tells lawyers not to threaten another lawyer with a bar complaint, but that doesn’t matter. Don’t do it.