We’ve all been there. Opposing counsel has acted like a jerk throughout your case. But now, counsel has crossed the line with conduct that you think is not merely uncooperative or dilatory, but also unethical.
Thinking of telling your opponent that you’re going to file a complaint with disciplinary authorities about that unethical conduct? You should probably take some deep breaths and think again about that threat. As a recent ethics opinion from the Association of the Bar of the City of New York (ABCNY) points out, making that threat may be unethical conduct on your part, if:
- you are ethically required to actually report another lawyer’s misconduct, and you instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer; or
- you lack a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule; or
- your threat of disciplinary charges has no substantial purpose other than to embarrass or harm; or
- your threat of disciplinary charges violates other substantive laws, such as criminal statutes that prohibit extortion.
No threats to gain leverage
Limiting threats in this way doesn’t mean that you have nothing to say to that troublesome opposing counsel, says the ABCNY committee. You can confront opposing counsel with evidence of the misconduct, confirm whether she denies it or can explain it, and if appropriate, notify her as a courtesy that you intend to file disciplinary charges. See Roy D. Simon, Threatening to File Grievance Against Opposing Counsel (cited by the ABCNY committee).
But “what the attorney may not do,” the committee explained, “is condition the handling of a mandatory grievance on compliance with a particular demand.” So, even if you are convinced of the ethics violation, “it would be improper, in the words of Professor Simon, to ‘invit[e] the opposing lawyer to bargain away the grievance.'”
In other words, under this New York opinion you can’t use a disciplinary-charge threat in order to gain leverage for your client. If the conduct is really an ethical violation, you must analyze whether you have a duty to report it under New York’s version of Model Rule 8.3(a), and if so, you must pull the trigger, not just make a threat.
Under Model Rule 8.3(a), if you know that “another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” you “shall” inform the proper authority.
Jurisdictions with express prohibitions
The New York Rules of Professional Conduct actually lack a direct rule on threats to file disciplinary complaints. Therefore, the ABCNY ethics committee had to look to other ethics opinions and several other rules in order to reach its result, including NY Rules 3.1(b), 4.1(a) and 8.4(c). (Likewise, the ABA Model Rules don’t address disciplinary-charge threats directly, although ABA Formal Ethics Op. 94-383 says that other rules “constrain” such threats.)
In contrast, other jurisdictions have express rules barring improper disciplinary-charge threats. They include: my home state of Ohio (ORPC 1.2(e)); Illinois (IRPC 8.4(g)); California (CRPC 5-100(A)); the District of Columbia (DCRPC 8.4(g)); Texas (TDRPC 4.04(b)); and Florida (FRPC 4-3.4(h)).
And lawyers have gotten themselves into disciplinary trouble by improperly threatening to bring disciplinary charges against another lawyer. See, e.g., In re Pyle (Kan. 2004) (public censure for threatening to report opposing counsel to disciplinary agency unless settlement reached); Barrett v. Va. State Bar (Va. 2005) (threats to seek disbarment of party’s counsel if she did not withdraw violated Rule 3.4(i); remanded to determine sanction).
The take-away: check your jurisdiction’s own rules and ethics opinions (as always), and even without an express prohibition, you should think twice about threatening to bring a disciplinary charge against another lawyer — it just may backfire against you.