4.4:220 THREATENING PROSECUTION

• Jurisdiction: Arizona

4.4:220 Threatening Prosecution

Neither ER 4.4 nor ER 8.4 expressly addresses the propriety of an attorney threatening a third party with criminal prosecution in the context of civil litigation. Former DR 7-105 of the Code of Professional Responsibility provided that it was an ethical violation for a lawyer to threaten criminal charges for the sole purpose of attempting to gain an advantage in a civil matter, but this rule was not carried forward into the Model Rules of Professional Conduct.

Notwithstanding the absence of a specific prohibition directed to such conduct, threatening an adversary or third party with criminal prosecution may violate ER 8.4(b) or (d) if the threat violates a criminal statute. That is the clear implication of Arizona Ethics Opinion No. 91-07, in which the Committee concluded that an attorney in the Child Support Services Division of the County Attorney's Office may use a form letter that alludes to criminal prosecution, if the letter in context does not violate the state's extortion statute, and does not run afoul of any specific ethical proscription. In addition to the concern that the use of such threats may amount to extortion, which may subject the lawyer using them to criminal prosecution, they may also support a claim of abuse of process, for which lawyers may be held liable to third parties. See Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (App. 1999); McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985); Bird v. Rothman, 128 Ariz. 599, 617 P.2d 1097 (App. 1981); Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (App. 1980).

ABA Formal Ethics Opinion 92-363 opined that "[t]he Model Rules...