Threatening to File a Disciplinary Complaint against Another Lawyer: A New York City Bar Association Formal Ethics Opinion

FOR IMMEDIATE RELEASE

Kathryn Inman
(212) 382-6656

Threatening to File a Disciplinary Complaint against Another Lawyer: A New York City Bar Association Formal Ethics Opinion

New York, June 30, 2015 – The New York City Bar Association’s Committee on Professional Ethics has issued Formal Opinion (2015-5), stating that an attorney who intends to threaten disciplinary charges against another lawyer should “carefully consider” whether doing so violates the New York Rules of Professional Conduct. Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules.

Rule 3.4(e) arguably comes closest to addressing the issue, as it prohibits lawyers from threatening “to present criminal charges solely to obtain an advantage in a civil matter,” yet it is silent in regards to threatening disciplinary charges. While the plain language of Rule 3.4(e) limits its reach to threats of criminal charges, this does not mean that lawyers are “free to threaten disciplinary charges with impunity,” states the Opinion. As discussed below, other ethical rules impose limits on making such threats.

Under Rule 8.3(a), New York attorneys are required to report certain misconduct by other lawyers. Specifically, “[a] lawyer who knows 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 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” Once an attorney concludes that she has a mandatory duty to report another lawyer’s conduct, failure to do so would itself violate Rule 8.4(a), which prohibits a lawyer from “violat[ing] or attempt[ing] to violate the Rules of Professional Conduct.” By extension, “threatening to file a disciplinary complaint unless the other lawyer accedes to some demand would, likewise, violate Rule 8.4(a),” even if the attorney who made the threat ultimately reports the other lawyer’s conduct. That said, the Opinion states that “before making a report, an attorney is permitted to confront her adversary with evidence of misconduct to confirm that an ethical violation has occurred.”

Attorneys are not required to report every ethical violation. For instance, an attorney is not required to report conduct that she merely suspects has been committed. However, notes the Opinion, even where an attorney is not required to report unethical conduct, she is permitted to do so, subject to confidentiality restrictions and provided she has a “good faith belief of suspicion that misconduct has been committed.”

“Given that any disciplinary threat must be based on a good faith belief, it necessarily follows that a lawyer may not make a threat she knows to be false,” says the Opinion. Rule 4.1 states that “[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” This prohibition includes threatening to file a disciplinary grievance that is based on a false statement of fact or law. Such a threat would also violate Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.”

In addition, making such a threat in a civil or criminal proceeding may also violate Rule 3.1(a), which states that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” According to the Rule, “[a] lawyer’s conduct is ‘frivolous’ if,” inter alia, “the lawyer knowingly asserts material factual statements that are false” or “the conduct . . . serves merely to harass or maliciously injure another.” R. 3.1(b).

Like Rule 3.1(b), Rule 4.4(a) serves to curb misconduct aimed at harming third parties, but applies to all types of representations. Rule 4.4(a) states, inter alia, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or harm a third person.” Threatening to file a disciplinary complaint against an adversary in order to gain a strategic advantage violates this rule, states the Opinion, “if the threat serves no substantial purpose other than to embarrass or harm the other lawyer or his client.”

Furthermore, notes the Opinion, “We do not believe that the goals of the disciplinary rules are served when an attorney uses a disciplinary threat improperly to create a conflict of interest between another lawyer and his client. There are legitimate options available to the plaintiffs’ attorney to address the misconduct, including seeking sanctions or disqualification.” Additionally, under certain circumstances, threatening to file a disciplinary complaint may also violate New York’s law against extortion or other criminal statutes.

The Opinion notes that there may be instances in which a threat to report a disciplinary violation is appropriate. “For example, if an attorney suspects another lawyer is unaware that his conduct violates the Rules, it may be appropriate to educate the lawyer about the violation and give him an opportunity to change his conduct, before filing a disciplinary violation. In addition, it may be appropriate to threaten disciplinary action in order to induce the other lawyer to remedy the harm caused by his misconduct, such as returning improperly withheld client funds or correcting a false statement made to the court.” However, given the opportunity for abuse, the Opinion emphasizes that the right to threaten a disciplinary grievance is subject to important limitations, as described in the Opinion.

Ultimately, an attorney intending to threaten disciplinary charges against another lawyer should thoughtfully consider whether doing so violates the New York Rules, because while disciplinary threats do not violate Rule 3.4(e), they may violate other Rules.

The Opinion can be read here: http://bit.ly/1BPzz6i

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org