Rattling the Saber: The Ethics of Threatening Criminal and Disciplinary Prosecution
by J. Nick Badgerow1
I. Introduction
Sabers rattle through the night,
Hear the daunting roar and din;
Threatening a woeful fight,
With the hope that you'll give in.2
Some lawyers, in the course of negotiating resolutions for their clients in civil claims, threaten opponents with criminal prosecution. Some lawyers, as part of negotiation of civil claims for their clients, threaten opposing lawyers with disciplinary complaints. Indeed, the term "civil" as applied to the resolution of injury and damage claims through litigation is a term at times not applicable to the manner of their handling.
There are several reasons for this phenomenon. First, litigation is increasing. There is no doubt that the number of lawsuits being filed is increasing each year. Second, the cases filed are more complex and difficult, on average, than they were 15 or 20 years ago. Certainly, there is no comparison between the typical twenty-first century litigation and the average case filed at the turn of the last century. Third, there are more lawyers than ever before. This creates competition for the legal business that is available to be done. Although the number of lawsuits has increased, and continues to increase, the growth in the number of lawyers has outstripped the growth in the number of cases filed. Thus, there is increasing competition for the business.
A larger bar reduces the opportunity for individual lawyers to meet, confer, get to know each other, and develop a relationship of respect and mutual cooperation. The Golden Rule and the "whatever goes around . . ." rule have less chance for consideration between lawyers who have not met or opposed each other in the past, and feel it is unlikely that they will do so in the future. Although the Latin aphorism holds that "familiarity breeds contempt,"3 it is more likely the absence of familiarity that breeds the possibility of deeper contempt, at least in those who are so inclined.
Lawyers engaged in "scorched earth" litigation, or no-holds-barred contract negotiations, frequently threaten opposing parties with criminal prosecution and threaten opposing counsel with disciplinary complaints, hoping to instill fear and thereby induce acquiescence. Although many lawyers engage in this kind of conduct, others believe that the threat of criminal prosecution or ethics complaints solely to obtain an advantage in civil litigation is expressly prohibited by the Rules of Professional Conduct applicable to lawyers. But is it?
The old Model Code of Professional Responsibility ("code") expressly prohibited threats of criminal prosecution solely to gain an advantage in civil litigation. The drafters of the current Model Rules of Professional Conduct ("MRPC") overtly excluded such an express prohibition. The purpose of this article is to explore the reasoning behind this change, and to explore the parameters of permissible behavior as they relate to the threat of criminal prosecution or an ethics complaint. While the MRPC does not contain an express prohibition against such threats, other rules are applicable and should be carefully considered before making such threats or responding to such threats.
II. The Model Code: DR 7-105(a)
The Model Code of Professional Responsibility was adopted by the American Bar Association in 1969. The code was adopted by the Supreme Court of Missouri in 1971 and by the Kansas Supreme Court in 1976. In structure, the code sets out nine very general, single-sentence "Canons," followed by more specific Disciplinary Rules ("DRs"). In addition, there are Ethical Considerations ("ECs"), for the guidance of the practitioner.
Canon 7 is entitlted, "A Lawyer Should Represent a Client Zealously Within the Bounds of the Law." Under that Canon, DR-7-105, titled "Threatening Criminal Prosecution," states: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." The reason for this rule is clear: One should not use the imprimatur of the state to coerce more than is just.
Certainly, under this rule it would be improper to threaten criminal prosecution solely to induce a civil settlement. For example, where a client's check to his lawyer for fees is dishonored for insufficient funds, it is a violation of DR-7-105 for the lawyer to send a letter to the client threatening to turn the matter over to the district attorney for prosecution, even though the conduct of the client represented a violation of the criminal code.4
An extreme example of this type of lawyer misconduct is shown in the New York case of In the Matter of Geoghan,5 where a lawyer advised an opposing party that his client would "give false and misleading testimony" to help in a pending criminal case against the opposing party, if the opposing party would pay his client $100,000.6 Predictably, the lawyer was disbarred.
Less egregious conduct elicits more favorable results for the lawyer. For example, in Revson v. Cinque & Cinque,7 the federal court of appeals found no violation of DR 7-105(a) where the lawyer - in threatening to bring a civil RICO action against a group of attorneys - mentioned that other attorneys had been convicted in criminal cases for similar conduct.8 Apparently, this threat was not sufficiently overt to run afoul of the rule.
As noted below, the Model Rules of Professional Conduct, the successor to the Model Code, contain no provision similar to DR 7-105. However, in reaction some states have readopted the code's principles on the subject, even while adopting the model rules. For example, the District of Columbia Bar has added a section to Rule 8.4, the general rule on attorney misconduct. This additional provision makes it misconduct for a lawyer to "seek or threaten to seek criminal charges or disciplinary complaints solely to obtain an advantage in a civil matter." Note that this provision adds the prohibition of threatening disciplinary complaints against the opposing party's counsel, as well as the threat of filing criminal charges against the opposing party. Predictably, under this rule, the D.C. Bar Ethics Opinion Committee has found it to be a violation of the attorney's ethical rules to make either type of threat "solely" to gain advantage in a civil case.9
Because the rule uses the term "solely," then presumably even under the code it would not be improper to threaten criminal prosecution if there are other purposes besides the gaining of an advantage in a civil matter.10
III. The Model Rules
A. Rule 4.4
The Model Rules of Professional Conduct were adopted by the ABA in 1983. The model rules were made applicable to Missouri lawyers in 1986, and to Kansas lawyers in 1988. Rule 4.4, MRPC, provides as follows:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Notably, Rule 4.4 does not contain an express prohibition against threatening criminal prosecution solely to gain an advantage in civil litigation. Indeed, the commission that authored the model rules affirmatively excluded it.
11 May one conclude, then, that by excluding the prohibition it is now permissible to make threats of criminal prosecution in order to leverage advantage for one's civil clients?
The American Bar Association Ethics Opinion Committee addressed this issue in its Opinion No. 92-363 (1992). That opinion holds that it is not improper for a lawyer to discuss the possibility of criminal charges to gain a benefit for his client.12 However, the criminal violation must be related to the civil matter, and the lawyer must not attempt to influence the process of law in the criminal arena.13 Taking this opinion as guidance, it would appear that the blanket prohibition against threatening criminal prosecution under the former code is no longer applicable, but there are limits to such threats.
A landmark case addressing this issue was decided in the same year as Opinion 92-363. In that case, Committee on Legal Ethics v. Printz,14 the Supreme Court of West Virginia held that it is not unethical for a lawyer to seek restitution for his client rather than a criminal prosecution. The court warned, however, that the negotiations for such restitution must be "otherwise legitimate."15 In addition, the apparent freedom to make threats must be tempered by other considerations: "Seeking payment beyond restitution in exchange for foregoing a criminal prosecution or seeking any payments in exchange for not testifying at a criminal trial, however, are still clearly prohibited."16
B. Other Model Rules
In removing the blanket prohibition against threats of criminal prosecution, the drafters of the MRPC believed that "extortionate, fraudulent, or otherwise abusive threats were covered by other, more general prohibitions in the Model Rules and thus that there was no need to outlaw such threats specifically."17 The ABA Committee on Ethics and Professional Responsibility assumed several MRPC provisions will act to prohibit such conduct.
Under Rule 8.4(b), it is professional 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."18 The ABA Committee on Ethics explained that "[w]hile the Model Rules contain no provision expressly requiring that the criminal offense be related to the civil action, it is only in this circumstance that a lawyer can defend against charges of compounding a crime (or similar crimes."19 Additionally, under Rule 8.4(d) and (e) it is professional misconduct for a lawyer to "engage in conduct . . . prejudicial to the administration of justice" or to "state or imply an ability to influence improperly a government agency or official."20
Under Rule 4.1, a lawyer has a duty to be truthful when dealing with others on a client's behalf. This imposes limits on the threats a lawyer should make when the client has no intent to criminally prosecute.21 Finally, under Rule 3.1, attorneys are prohibited from asserting frivolous claims. "A lawyer who threatens criminal prosecution that is not well founded in fact and in law, or threatens such prosecution in furtherance of a civil claim that is not well founded, violates Rule 3.1."22
These various rules were all identified as possible sources of risk for the lawyer threatening criminal prosecution in State of Oklahoma ex rel. Oklahoma State Bar Association v. Worsham,23 where the court held:
Even though Rules 3.1, 4.1, 4.4, and 8.4 do not specifically address a lawyer's threatening criminal prosecution, these rules limit certain threats. A threat of criminal prosecution without a basis in fact or law is a violation of Rule 3.1 which prohibits the assertion of frivolous claims. Rule 4.1, duty regarding truthfulness, prohibits a lawyer from threatening criminal prosecution unless the lawyer intends to proceed with the criminal charges. Rule 4.4 prohibits a lawyer from making a threat which has "no substantial purpose other than to embarrass, delay, or burden a third person. . . ." A threat that the lawyer could influence a governmental official would violate Rule 8.4(d) and (e).24
Thus, there are a number of ethical rules applicable to the use of the threat of criminal prosecution to gain an advantage in civil cases.
III. Additional Deterrents To Making Threats
A. Criminal Law
Under Missouri law, concealing an offense is a criminal violation. Missouri statute § 575.020 states:
A person commits the crime of concealing an offense if: . . .(2) He accepts or agrees to accept any pecuniary benefit or other consideration in consideration of his concealing any offense, refraining from initiating or aiding in the prosecution of an offense, or withholding any evidence thereof.25
Although §575.020 was primarily utilized prior to 1935, one recent case involving a merchant who caught an 11-year-old stealing from a store applied § 575.020.
26
In Y.W. v. National Super Mkts., Inc., a child thief's mother entered into a release with a store owner, whereby the store owner agreed not to prosecute the minor criminally in consideration for the minor's agreement not to bring civil charges against the store for the arrest.27 The child challenged the release and the court found the agreement invalid as contrary to public policy.28 The Y.W. court stated that "[i]t would impede society's ability to fight crime if victims based their decisions on whether to bring criminal charges against perpetrators on whether they could financially profit from not bringing such charges."29 This rule would pose a problem for lawyers who threaten criminal prosecution during negotiation of civil disputes. If the opposing party bends to the threatening lawyer's demands, but asks for a written agreement, that agreement may be void as against public policy.
Not only might the agreement be void, but - if future cases follow Smith - all parties would be guilty of criminal conduct. The Y.W. court noted that the merchant, the child, and the mother would all be guilty of the crime of concealing an offense.30 Although stated in dictum, the court's application of § 575.020 indicates that, despite being long dormant, concealing an offense continues to be a crime in Missouri.
Although § 575.020 prohibits agreements not to initiate charges, it does not prohibit the threat of criminal charges if there is no promise not to prosecute. Parties could seemingly avoid violation of § 575.020 by threatening criminal prosecution as a negotiation tool, and stop short of agreeing not to prosecute. This, however, may be a dangerous route, because when threatening criminal prosecution a lawyer will at a minimum imply that he will not prosecute if his client's demands are met.31 At the risk of criminal prosecution, parties should avoid entering factual disputes over whether they agreed not to prosecute.
B. Rule 8.4, MRPC
In states such as Missouri, where it is a crime to conceal an offense, recommending violation of that statute may violate the Rules of Professional Conduct. Although the ABA has published an opinion that threats of prosecution do not violate Rule 8.4 where the criminal threat directly arises from the subject matter of the civil lawsuit, Missouri has not yet adopted this opinion. Rule 8.4 states: "It is professional misconduct for a lawyer to: . . . commit a criminal act. . . ."32 Therefore, where concealing an offense is a crime, any legal opinion that a party should proceed and conceal an offense could violate an attorney's ethical obligations and subject him to sanctions.
C. Kansas Shoplifting Statute
Under Kansas Statute § 60-3331, a merchant may file a civil action to recover a civil penalty against any person who shoplifts from that merchant. Further, if the shoplifter is an unemancipated minor, the merchant can recover a civil penalty from the minor's parent.33 The statute requires a merchant to demand reimbursement of the penalty amount before a civil action is filed.34 The subsection requiring demand goes on to expressly forbid that the demand letter contain a threat of criminal prosecution:
Such [a] demand shall not contain a threat of criminal prosecution against such individual. Any merchant who makes a demand with a threat of criminal prosecution against such individual shall be precluded from filing a civil action under this section and pursuing any other remedy at law or equity.35
Under this statute, a merchant's remedies are cut off if he threatens criminal prosecution for shoplifting. Attorneys representing merchants should take care not to use criminal threats in this context.
IV. Balancing The Interests Of The Parties And Society
While there are reasons to hesitate before using threats for civil advantage, some jurisdictions have found threatening criminal charges as a negotiation tool to be good lawyering.36 In Printz, the court held that an attorney does not violate ethics rules by telling a client's employee that the employer will press criminal charges unless he repays embezzled money. And a criminal statute prohibiting the taking of money in exchange for concealing an offense is unconstitutional under the doctrine of desuetude.37 The court in Printz states that "competent representation would seem to require the lawyer to press ahead with such full-ranging negotiations."38 Although Kansas and Missouri have not adopted West Virginia's approach, those states and others may adopt this approach in the future, because the issue of using threats as a negotiation tool is not specifically referred to in the ethical rules or court opinions.
V. Threats Of Lawyer Disciplinary Complaints
Besides threatening opposing parties with criminal prosecution, some lawyers threaten other lawyers with reports or complaints to bar disciplinary authorities.
As noted above, both Missouri and Kansas have adopted the MRPC, and take a similar approach to disciplinary complaint threats as to criminal threats: Though such activity is not specifically prohibited by the MRPC, it can be unethical under several other provisions.
Threats are not permitted when the conduct in question falls under a state's mandatory reporting requirement. In Missouri, Rule 8.3(a) states:
A lawyer having knowledge 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, shall inform the appropriate professional authority.39
In Kansas, the rule has been made even more broad:
A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.40
An agreement to violate the MRPC is a violation of Rule 8.4(a).
41 As the ABA Ethics Committee reasoned, "Because an agreement not to file a[n ethics] 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)."
42
As noted above, Rule 8.3(a) has greater importance in Kansas, which follows a more expansive reporting requirement than that of the MRPC. The Kansas rule requires that an attorney report "any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules."43 Thus, using the logic of the ABA opinion, any threat of disciplinary action is a violation of Rule 8.4(a) because it implies that the threatening attorney is willing to keep quiet about an ethics violation in exchange for a settlement.44
If an attorney is not required to report the violation under Rule 8.3(a), the threat still is ill-advised. Disciplinary threats raise special concerns because they introduce the attorney's fate into the negotiation process - potentially creating a conflict of interest (in violation of Rule 1.7(b)), burdening a third person (in violation of Rule 4.4), and/or hindering the administration of justice (in violation of Rule 8.4(d)).45 "Such a threat burdens both the opposing lawyer and his client by introducing extraneous factors into their assessment of whether to settle or proceed to trial. It also creates a conflict of interest between them."46 As the Florida Bar Association opined, disciplinary threats are "ethically impermissible under most circumstances."47
VI. Conclusion
The threat of criminal prosecution or disciplinary action against an opposing party or counsel is a powerful weapon. The ethical rules of conduct no longer prohibit all threats of criminal prosecution to gain advantage in civil disputes. Resolution of clear violations of criminal law that relate to and arise from the same conduct as the civil claim can and should be used as added incentives to settle a case. However, violations of criminal law that do not arise directly from a client's matter should be reported to the court and the district attorney. Threats should be made only when attorneys are certain they are within the bounds of the MRPC's many provisions governing such conduct. Threats of disciplinary action, on the other hand, generally are not proper and are expressly prohibited by several state rules. Violations of the rules of conduct should be reported. The saber that is rattled may end up coming back to harm the rattler.
Hear my saber rattle.
My battle cry abhor.
I shall win one major battle,
Though at last, I lose the war.48
Footnotes
1 J. Nick Badgerow is the partner in charge of the Overland Park, Kansas office of Spencer Fane Britt & Browne LLP. He serves on several ethics boards and committees for attorneys. He received his B.A. from The Principia College in 1972, and his J.D. in 1975 from the UMKC School of Law. Copyright 2004, J. Nick Badgerow. Special thanks to Jennifer Fletcher, an associate at Spencer Fane Britt & Browne LLP and Travis Lenkner, a 2003 summer associate at Spencer Fane Britt & Browne LLP for research assistance.
2 "Shiloh," by Vic Benelli, with permission from the author.
3 In Latin, "Nimia familiaritas parit contemptum. Syrus (Publilius Syrus), Maxims (640)," available at http://www.giga-usa.com/gigaweb1/quotes2/qutopfamiliarityx001.htm. A humorous spin on the same quote comes from Mark Twain (Samuel Longhorn Clemens): "Familiarity breeds contempt. How accurate that is. The reason we hold truth in such respect is because we have so little opportunity to get familiar with it." Mark Twain, Notebook (1898), available at http://www.jokemonster.com/quotes/quotes/m/Marktwain139305.html (last visited December 29, 2004).
4 Tex. Comm. on Prof'l Ethics, Op. 457 (1988).
5 253 A.D.2d 205, 686 N.Y.S.2d 839 (1999).
6 Id.
7 221 F.3d 71 (2d Cir. 2000).
8 Id. at 81.
9 D.C. Bar Legal Ethics Comm., Op. 220 (1991), available at http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion220.cfm (last visited December 29, 2004).
10 Id.
11 Professor Hodes notes that the provision was "deliberately omitted as redundant or overbroad or both." Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, §40.4 (3rd ed. 2000).
12 ABA Committee on Ethics and Prof'l Responsibility, Op. 92-363 (1992).
13 Id.
14 416 S.E.2d 720 (W. Va. 1992).
15 Id. at 723.
16 Id. at 727.
17 ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 92-363 (1992) (citing "C.W. Wolfram, Modern Legal Ethics (1986) @ §13.5.5, at 718, citing Model Rule 8.4 legal background note (Proposed Final Draft, May 30, 1981").
18 Model Rules of Prof'l Conduct R. 8.4(b) (2002).
19 See note 17.
20 Model Rules of Prof's Conduct R. 8.4(d), (e) (2002).
21 The lawyer may use the threat of criminal prosecution as a negotiating tool only if the lawyer genuinely believes that the conduct in question would constitute a criminal act. In the Matter of Craddock, 602 P.2d 406 (Alaska 1979) (lawyer misled complainant into believing she was subject to prosecution for failing to make restitution).
22 See note 17.
23 957 P.2d 549 (Okla. 1998).
24 Id. at 552.
25 Section 575.020, RSMo 2000.
26 See Y.W. v. National Super Markets, Inc., 876 S.W.2d 785 (Mo. App. E.D. 1994); see also Fidelity & Deposit Co. v. Grand Nat'l Bank of St. Louis, 69 F.2d 177 (8th Cir. 1934); Sumner v. George W. and C.L. Summers, 54 Mo. 340 (Mo. 1873).
27 876 S.W.2d 785, 787 (Mo. App. E.D. 1994).
28 Id. at 789; see also Ensminger v. Burton, 805 S.W.2d 207 (Mo. App. E.D. 1991) ("A contract made with the purpose and upon the consideration that a criminal prosecution shall be suppressed, stifled or stayed, will not be enforced.").
29 Id. at 790-91.
30 Id. at 789-90.
31 Not only must the threatened criminal prosecution have some merit, but the threat itself must not violate the criminal laws against extortion. See, Robertson's Case, 626 A.2d 397 (N.H. 1993), and ABA Comm. on Ethics and Prof'l Responsibility, Op. 94-383 (1994).
32 Rule 4-8.4 (2004).
33 Kan. Stat. Ann. § 60-3331(b) (2003).
34 Kan. Stat. Ann. § 60-3331(e) (2003).
35 Id.
36 See Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W.Va. 1992).
37 Id. at 725. "Desuetude" means discontinuance from use or exercise.
38 Id.
39 Rule 4-8.3(a) (2004).
40 Kansas Rules of Professional Conduct, 8.3(a)(1999).
41 Id. at Rule 8.4(a) (1999).
42 ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 94-383 (1994).
43 Kansas Rules of Prof'l Conduct R. 8.3(a) (1999).
44 See note 42.
45 Id.
46 Id.
47 Fla. Comm. on Prof'l Ethics, Op. 94-5 (1995).
48 Daniel F. Mitchell, Wisps 174 (Gray Matter Publishing & Design Company 2000), "Hit Man," poetry by Daniel F. Mitchell, available at http://www.poetryring.com/wisps.pdf.
JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 1 - January-February 2005