Kansas Bar Journal
Vol. 74 No. 4.
Thinking Ethics: Don't Threaten Me: A Lawyer's Duties Under Rule 8.3
Vol. 74 No. 4 April 2005 Thinking Ethics: Don't Threaten Me: A Lawyer's Duties Under Rule 8.3 By J. Nick Badgerow Introduction
In an effort to gain an advantage for a civil client, or more often in a fit of anger, lawyers sometimes inform opposing lawyers of intent to file a complaint with the Kansas Disciplinary Administrator. Is it appropriate or ethical to make such threats?
The Model Rules Replaced the Code Regarding Threats
Under the Code of Professional Responsibility (Code), which preceded the current Model Rules of Professional Conduct (MRPC/Model Rules), threats of criminal charges to gain an advantage for a client in a civil matter were improper.(fn1) Disciplinary Rule-7-105 provided:
A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
When the MRPC were adopted by the Kansas Supreme Court in 1988, the former Code and its disciplinary rules were replaced.(fn2) In particular, DR 7-105 was considered and excluded, as redundant or overly broad,(fn3 )in view of other provisions of the Model Rules."(fn4) Those other rules include:
Rule 4.4: a lawyer has a duty not to use means, which have no substantial purpose other than to embarrass, delay, or burden a third person.
Rule 8.4(b): a lawyer shall not "commit a criminal act [such as extortion] that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects."(fn5)
Rule 8.4(d) and (e): a lawyer shall not engage in conduct prejudicial to the administration of justice.(fn6 )
Rule 4.1: a lawyer shall be truthful when dealing with others on a client's behalf. Thus, one should not make threats to do something, with no intention to actually do it.(fn7 )
Rule 3.1: a lawyer shall not assert frivolous claims. "A lawyer who threatens criminal prosecution that is not well-founded in fact and in law, or threatens such prosecution in furtherance of a civil claim that is not well founded, violates Rule 3.1."(fn8 )
While a disciplinary complaint is not a "criminal" charge, it does represent a report to a governmental administrative agency, where the results can include professional discipline, up to and including...