III. Saber-rattling
Library | Professional Responsibility in Litigation (ABA) (2016 Ed.) |
III. Saber-Rattling
This part examines saber-rattling, which should be understood here to include lawyers' (1) threats of criminal prosecution intended to obtain an advantage in a civil matter, whether aimed at parties, witnesses, other lawyers, or other third parties, and (2) threats of professional discipline directed at other lawyers.
A. Applicable Rules of Professional Conduct
With respect first to threats of criminal prosecution, the Model Code of Professional Conduct, once the foundation for most state ethics rules, stated in DR 7-105(A) that lawyers "shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."138 The drafters of the Model Rules omitted the DR 7-105(A) prohibition on the basis that it was overbroad, redundant, or both, although some jurisdictions that adopted the Model Rules incorporated the language of DR 7-105(A) in their new rules.139 California, which currently maintains its own professional responsibility regime, prohibits lawyers from threatening administrative, criminal, or disciplinary charges to obtain an advantage in a civil dispute.140
DR 7-105(A) was flawed in other respects. The rule only prohibited threats of criminal charges for the sole purpose of obtaining an advantage in a civil matter; it was silent on other threats of similar type, such as those promising sanctions or disciplinary complaints. Moreover, the rule cramped lawyers' ability to competently negotiate for clients in any matter in which another party's conduct was both criminal and tortious. Such controversies are oddly common, and inevitably require lawyers to explore alternative remedial routes. This is especially true where criminal prosecution may provide a party with relief beyond that which could reasonably be obtained through litigation alone, such as court-ordered restitution. As long as DR 7-105(A) was in force, however, lawyers involved in cases with overlapping civil and criminal aspects, or in matters characterized by parallel civil and criminal proceedings, had reason to worry that seemingly responsible representation could expose them to professional discipline.
In most jurisdictions, the check on threatening behavior that DR 7-105(A) once provided is now enforced under several rules of professional conduct. These rules are much broader than DR 7-105(A) was, and apply to all forms of threatening behavior, rather than only to threats of criminal action.
To start, Model Rule 3.1 provides in pertinent part that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in fact or law for doing so that is not frivolous."141 Whether a claim or contention is frivolous under Rule 3.1 is generally measured by an objective "reasonable attorney" standard.142 Thus, lawyers cannot escape discipline, for example, by claiming that they were mistaken as to the applicable law where that law is settled.143 Still, not every meritless claim or contention is frivolous.144 For claims or contentions to be frivolous under Rule 3.1, there must be such a complete absence of facts or law that reasonable lawyers could not have expected a court to rule for them.145 Trouble remains, however, because some courts augment Rule 3.1's objective test with a subjective standard.146 If a lawyer in one of these jurisdictions makes a claim or contention with an improper motive or in bad faith, the fact that the position may be objectively non-frivolous will not spare the lawyer from professional discipline.147
Model Rule 3.1 provides that a claim or contention is not frivolous if a lawyer can make "a good faith argument for an extension, modification or reversal of existing law."148 Although the term "good faith" suggests that lawyers' arguments for extending, modifying, or reversing existing law are measured according to a subjective standard, the test for a violation remains objective. Lawyers cannot defend their conduct on the basis that they were only pushing the envelope, for example, when a reasonable lawyer knowing the facts would conclude that the supposedly novel argument was frivolous. The requirement that courts weigh lawyers' motives when evaluating their alleged misconduct does not preclude application of an objective standard.
Lawyers' threats of criminal complaints, disciplinary complaints, sanctions, and lawsuits are often hollow when made; the threatening lawyers have no intention of following through if their targets are not cowed into doing their bidding. Call these threats bluffs or brand them as lies, but they are in any event false statements. Accordingly, if they are material they violate Model Rule 4.1(a), which provides that in the course of representing a client a lawyer cannot "knowingly" make a "false statement of material fact or law to a third person."149
The reference to "a third person" in Model Rule 4.1(a) establishes that the rule relates to lawyers' communications with non-clients.150 Lawyers' false statements to clients are punished under other rules.151 The term "knowingly" when used here, as elsewhere, "denotes actual knowledge";152 it does not describe "evil intent or bad purpose."153 Lawyers' knowledge may be inferred from circumstances.154 Model Rule 4.1(a) applies only to statements of fact or law; lawyers' statements of opinion will not violate the rule.155 Innocent misstatements do not implicate Rule 4.1(a),156 although statements made with reckless disregard for the truth may.157 A statement is "material" for purposes of the rule if it is significant or essential, if it could have influenced the hearer,158 or if it affected the outcome of the proceeding.159 Courts evaluate materiality on a case-by-case basis.160
Model Rule 4.1(a) does not include a causation or reliance element. A lawyer therefore violates the rule simply by making a prohibited statement. The person to whom the statement is made does not have to act or detrimentally rely on the statement to perfect the violation.161 The person's reliance on the lawyer's false statement may, however, affect the discipline to be imposed and in some cases may support other claims against the lawyer.
Model Rule 4.4(a) is closely related to Model Rule 3.1, and threatening conduct violating the latter likely violates the former.162 Model Rule 4.4(a) clearly applies to saber-rattling by lawyers. The rule provides: "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."163 Model Rule 4.4(a) is in essence the successor to DR 7-105(A) insofar as threats of criminal prosecution intended to confer an advantage in a civil matter are concerned. The rule is obviously much broader than DR 7-105(A), however, and it sweeps in a wide range of misconduct.164 Model Rule 4.4(a) makes clear that lawyers' duty to competently represent clients does not license them to harass others. In other words, Rule 4.4(a) functions as a brake on lawyers' zealous advocacy on clients' behalf.
As with Rule 4.1(a), a lawyer must be representing a client for Rule 4.4(a) to apply. This requirement is easily established in most saber-rattling cases. For example, a lawyer acting pro se is representing a client for Rule 4.4(a) purposes.165 Prosecutors acting in their official capacity are representing a client—i.e., the government, state, or "the people."166 The rule does not require that a lawyer's misconduct harm anyone to find a violation,167 nor is the fact that the person who was the target of the lawyer's conduct was upset or offended by it dispositive.168 To the contrary, and consistent with the rule's plain language, courts evaluating alleged Rule 4.4(a) violations focus on the purpose of the lawyers' conduct rather than its effect.169 This approach is necessitated by the fact that Rule 4.4(a) is commonly applied to lawyers' conduct in litigation, and some amount or degree of embarrassment, delay, and burden is inherent in litigation. The rule's reference to third persons makes clear that it applies to lawyers' conduct directed at anyone other than the lawyer's client, including court personnel, jurors, lawyers, parties, witnesses, and others.
Most Rule 4.4(a) controversies pivot on whether the lawyer's actions had "no substantial purpose" other than embarrassing, burdening, or delaying a third person.170 Rule 4.4(a) does not penalize legitimate tactics by a lawyer that have the unfortunate effect of embarrassing or inconveniencing someone.171 The apparent problem with Rule 4.4(a) is that a lawyer's actions aimed at harassing a third person are often done with the intent to benefit the lawyer's client, thus suggesting a legitimate alternative purpose. That seeming gap in the rule is inconsequential, however, because incidental or secondary benefit to an accused lawyer's client is insufficient to provide a defense to an alleged Rule 4.4(a) violation.172 Courts are unwilling to allow lawyers to corrupt the legitimate representation of clients through the use of improper means.173 Were it otherwise, Rule 4.4(a) would be widely ineffective in restraining lawyers' unreasonably aggressive behavior in representing clients. Indeed, Rule 4.4(a) exists to check lawyers' zeal in representing clients, and it is unremarkable that lawyers should be held to violate the rule if they cross the line from assertiveness to abuse in the course of a representation.174
Determining whether a lawyer's means in representing a client have a substantial purpose other than embarrassing, delaying, or burdening a third person requires a court to examine the lawyer's motives. It would be a mistake, however, to conclude that Rule 4.4(a) violations are gauged according to a subjective standard. Lawyers "cannot escape responsibility for a violation based on [their] naked assertion[s] that, in fact, the...
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