Ethics Watch
| Publication year | 2022 |
| Pages | 14 |
Improper Threats
By Nathan M. Crystal
"Don't threaten me you S.O.B. I don't knuckle under to unethical threats."? Putting aside the strategic wisdom and efficacy of a threat, when is a threat unethical? It turns out that the answer is not so easy.
The Indiana Supreme Court's recent decision in In re Stout, 2022 Ind. Lexis 92 (Feb. 3, 2022), provides a good starting point for answering the question. Stout represented a man who was the respondent to a petition for a protective order filed by a woman with whom he had had a relationship. Stout took the deposition of the petitioner, who was unrepresented. During the deposition Stout displayed a number of intimate photographs that the petitioner had sent to the man during their relationship prior to the events that were the basis of the petition for a protective order. Stout asked the petitioner if she still intended to pursue the petition for a protective order or whether there was a "better way"? for her to proceed other than for her to be "drug through"? and "exposed in court."? Petitioner responded that she wanted the man to stop harassing her. Stout then ended the deposition and told petitioner that he would have the deposition transcribed and submitted to the court where it would become public and that there would then be a hearing, which would also be public. When Stout stated that there was a way to stop the matter from becoming public, petitioner responded that she wanted to dismiss the case. Stout instructed the court reporter to go off the record, and he then told the petitioner how she could dismiss the case, which she did immediately. Stout later bragged to an associate how he had obtained a dismissal by threatening to make the photographs public.
The hearing officer found and the Indiana Supreme Court agreed that Stout violated the following ethics rules:
4.1(a): Knowingly making a false statement of material fact or law to a third person in the course of representing a client.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
Notably, both the hearing officer and the Indiana Supreme Court rejected claims that Stout violated IRPC 4.4(a) and 8.4(b), which provide:
Rule 4.4. Respect for Rights of Third Persons
(a) 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...
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