A New York lawyer representing a landlord was suspended earlier this month for conduct that included threatening a tenant with arrest and telling him that he was worthless and should commit suicide.
In its opinion, the court found that the lawyer violated Rule 3.4(e) of the state’s Rules of Professional Conduct, which bars threatening to bring criminal charges solely to obtain an advantage in a civil matter, and meted out a four-month suspension. The case shines a light on threats of criminal charges under state ethics rules.
“I gotta get this guy”
A resident in one of the buildings that the lawyer’s client owned allegedly used a website to post accusations that the landlord overcharged tenants. According to the court’s disciplinary opinion, the lawyer sent a letter to the tenant, calling the posts defamatory and demanding that they be removed. Receiving no response after a week, the lawyer texted the tenant, “We are filing [a] lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website.”
Later that day, said the court, the lawyer phoned the tenant — who recorded the conversation. The lawyer told the tenant that “you’re one of those people in the world that really should just kill themselves.” Then, apparently turning to someone else present in his office, the lawyer said about the tenant, “start the lawsuit … I need him arrested … I gotta get this guy. He’s gotta be arrested.” The lawyer also told the tenant that his office was “in contact” with the District Attorney’s office, and that “you’re gonna be paying for this heavily for the rest of your life.”
The grievance committee charged the lawyer with threatening criminal charges solely to obtain an advantage in a civil matter; there were other disciplinary charges based on separate conduct, as well. At the disciplinary hearing, the lawyer presented no evidence that his firm ever filed suit against the tenant.
The four-month suspension that the First Department of the New York Appellate Division handed down was partly based on finding that the lawyer was a repeat offender and failed to take full responsibility for his conduct. (The referee had found that the lawyer was sorry that his actions had caused his disciplinary problems, but had not properly apologized or recognized “that his aggressive litigation tactics must be controlled.”)
No Model Rule…
Interestingly, while New York and many other jurisdictions have ethics rules barring threats of criminal prosecution to gain an advantage in a civil matter (see, e.g., Ohio, D.C., Florida, Texas, California), and the concept was embodied in DR 7-105 under the former Code of Professional Responsibility, the Model Rules omit this specific prohibition. The ABA explained in Formal Opinion 92-363 that the drafters believed that extortionate, fraudulent or otherwise abusive threats were dealt with by other more general rules (e.g., Model Rules 4.4, “Respect for Rights of Third Persons,” and 8.4, “Misconduct”).
Where is the line?
As ethics commentator Roy D. Simon points out in his New York Rules of Professional Conduct Annotated, threats to present criminal charges are “at the heart” of Rule 3.4(e). “The thinking is that if a person has engaged in criminal conduct, it ought to be brought to the attention of the appropriate authorities, not merely threatened,” he says, “and if a person has not engaged in criminal conduct then there is no basis for threatening to bring criminal charges.” Threats that are not carried out (as in the case discussed), may especially put a lawyer on risky ground.
What about the New York requirement that the threat’s purpose is “solely” to get leverage in a civil matter (language that varies across jurisdictions)? Simon notes that “courts and disciplinary authorities have sometimes paid little attention to the word.” Indeed, it’s not analyzed in the case discussed here. Some ethics opinions do call attention to the distinction raised by the word. See D.C. Ethics Op. 339 (can include citation to criminal statute in demand letter as long as threat is not solely to gain advantage in collection matter).
But that possible lack of clarity would seem to create some uncertainty (and therefore risk) in knowing where the ethical line is, particularly where the lawyer’s conduct presents a closer call than the court found in this case.