March 18, 2015 – Has opposing counsel ever threatened to file a disciplinary complaint against you to gain an advantage in a civil case? While such threats are not expressly prohibited, a lawyer considering making such a threat should carefully consider the Rules of Professional Conduct.
Question
During settlement discussions in an acrimonious divorce action, opposing counsel called me unethical and threatened to file a disciplinary complaint against me. Is it unethical for opposing counsel to threaten to file a disciplinary complaint against me in order to induce settlement? Is it unethical for opposing counsel to call me unethical?
Answer
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
The Rules of Professional Conduct do not expressly prohibit a lawyer from threatening to report opposing counsel to the disciplinary authority to gain an advantage in a civil case. However, the lawyer’s use of such a threat is constrained by the lawyer's obligation to report certain professional misconduct under SCR 20: 8.3(a), as well as by the prohibitions of SCR 20:8.4(a), SCR 20:8.4(b), SCR 20:8.4(c), SCR 20:3.1(a), SCR 20:4.1(a), and SCR 20:4.4(a).1
SCR 20:8.3(a) provides that a “lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” The Rule does not require a lawyer to report every violation: it limits reporting to “those offenses that a self-regulating profession must vigorously endeavor to prevent.”2 However, in those instances when a lawyer is required by SCR 20:8.3(a) to report the conduct of another lawyer, the lawyer’s failure to do so is a violation of SCR 20:8.4(a).3
A lawyer’s threat to file a disciplinary complaint is the logical precursor to an agreement to not file a complaint in return for an advantage in the civil case. An agreement to not file a disciplinary complaint would violate SCR 20:8.4(a) where the lawyer is required by SCR 20:8.3(a) to file a complaint.
Where the lawyer is not required by SCR 20:8.3(a)4 to report, a threat to do so may violate several other rules such as SCR 20:8.4(b), SCR 20:3.1(a), SCR 20:4.1(a), and SCR 20:4.4(a). Under SCR 20:8.4(b), it is misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” If the lawyer’s threat constitutes extortion under the criminal law, then that conduct violates SCR 20:8.4(b).5 Moreover, a lawyer who threatens to file a disciplinary complaint when there is no intent to do so or when there is no violation of the Rules, violates SCR 20:8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, deceit or misrepresentation.
Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email.
Aviva Kaiser is assistant ethics counsel with the State Bar of Wisconsin. Reach her by email.
A lawyer who threatens to file a disciplinary complaint that is not warranted under existing law violates SCR 20:3.1(a). In addition, a lawyer who threatens to file a disciplinary complaint without any actual intent to do so violates SCR 20:4.1, which prohibits a lawyer from making a false statement of material fact. Such threats also violate SCR 4.4(a), which prohibits a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person,” because it burdens both the lawyer threatened and his or her client by “introducing extraneous factors into their assessment of whether to settle.”6
Similarly, calling opposing counsel unethical to gain an advantage is “the antithesis of professionalism,”7 and may violate the attorney’s oath, which requires the lawyer to “abstain from all offensive personality.”8 Violating the attorney’s oath is misconduct under SCR 20:8.4(g).
While the Rules of Professional Conduct do not expressly prohibit a lawyer from threatening to file a disciplinary complaint against opposing counsel, the Rules do constrain a lawyer’s use of such threats. A lawyer considering making such a threat should carefully consider the Rules of Professional Conduct.
Endnotes
1 See ABA Formal Op. 94-383.
2 ABA Comment [3] to SCR 20:8.3. “The term ‘substantial’ refers to the seriousness of the possible offense.”
3 SCR 20:8.4(a) states that it is professional misconduct for a lawyer to “(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
4 For example, the lawyer may not “know” but may only suspect that the other lawyer violated a Rule, or the violation may not raise a substantial question of the other lawyer’s “honesty, trustworthiness or fitness as a lawyer in other respects.”
5 See ABA Formal Op. 94-383.
6 Id.
7 Iowa State Bar Ass’n Comm. On Ethics & Practice Guidelines, Op. 14-02 (Oct. 24, 2014).
8 SCR 40.15.
