Article Don't Threaten that Bar Complaint, 1019 UTBJ, Vol. 32, No. 5. 18

AuthorKenneth Lougee
PositionVol. 32 5 Pg. 18

Article Don't Threaten that Bar Complaint

Vol. 32 No. 5 Pg. 18

Utah Bar Journal

October, 2019

Kenneth Lougee

We have all been there. Lawyers handle legal matters because, for the most part, laypersons do not have the relevant expertise to represent themselves. The cases we handle involve the lives or livelihoods of our clients. Lawyers are under stress when representing clients because many times they see the outcomes more clearly than the clients. This is true whether the matter be high-level business negotiations, family law, or simply high-stakes litigation. Lawyer stress leads to frustration. Stress and frustration may also lead to lawyers attempting to intimidate their counterparts through hostile or demeaning comments. To obtain results, lawyers may resort to unfortunate conduct that does not advance their clients' interests. Far too often, these attempts at intimidation lead lawyers to threaten opposing counsel with a bar complaint. The purpose of this article is to explain that threatening a bar complaint is never proper and is indeed itself a professional violation.

The next time you find yourself wanting to threaten a bar complaint, please don't do it. Threatened bar complaints misunderstand the obligations to report under Utah Rule of Professional Conduct 8.3 (a). Threats ignore many of the rules of civility. A threat of a bar complaint probably exposes the threatening lawyer to his or her own bar complaint under Utah Rules of Professional Conduct 3.1 and 4.4(a). In sum, threatening bar complaints is never an appropriate litigation or negotiation tactic. Further, it is a bad idea.

The Utah Constitution gives the Utah Supreme Court of Utah explicit authority to govern the practice of law, including discipline of persons admitted to practice law. Utah Const, art. VIII, § 4. The supreme court has adopted the Utah Rules of Professional Conduct to meet its constitutional obligations. The court has clearly set out when a report of professional misconduct is required and when it is not. Rule 8.3(a) provides: "A lawyer who knows that another legal professional has committed a violation of the applicable Rules of Professional Conduct that raises a substantial question as to that Legal Professional's honesty, trustworthiness or fitness as a legal professional in other respects shall inform the appropriate professional authority." Utah R. Prof'l Conduct R. 8.3(a).

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