Focus on Ethics & Civility
| Publication year | 2018 |
| Pages | 52 |
| Citation | Vol. 31 No. 5 Pg. 52 |
September, 2018
Threats and Extortion: Walking the Ethical Line
Keith A. Call and Taylor P. Kordsiemon
We both have older brothers, which means we know a thing or two about threats – especially on the receiving end. Under threats of a “knuckle sandwich” and various other forms of intimidation, we have surrendered toys, food, control of the TV, and countless other things. We have also experienced witness tampering in the court of family affairs.
As lawyers, we should not threaten opponents with “knuckle sandwiches,” but it is undeniable that threats are a crucial component of litigation and negotiation. Attorneys regularly threaten to file suit, move for sanctions, take a case to trial, or request punitive damages. The art of threatening has a long and storied history in the legal profession, and it is widely regarded as one of the most effective means of negotiating.
It is possible, however, for lawyers to take the threatening tactic too far. To avoid serious consequences, such as a bar complaint, lawyers should be aware of the ethical considerations surrounding such threats.
Threatening Frivolous Litigation
Utah Rule of Professional Conduct 3.1 says that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.” Thus, attorneys are explicitly forbidden from filing non-meritorious claims. But what about threatening to file them?
While threats to instigate litigation can occur in a variety of settings, one of the most common forums is in demand letters.
The primary purpose of a demand letter is to persuade an opponent into settling a dispute under threat of pending litigation. Such threats are commonplace, and an “attorney is entitled to warn the opposing party of his intention to assert colorable claims, as well as to speculate about the likely effect of those claims being brought.” Revson v. Cinque & Cinque, P.C ., 221 F.3d 71, 80 (2d Cir. 2000). This holds true even when the threat is made in an offensive and uncivil manner. Id. at 79 (holding that a threat to subject an opponent to the “legal equivalent of a proctology exam” is not grounds for sanctions).
It is less clear, however, whether demand letters threatening frivolous litigation...
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