Vol. 82, No. 10, October 2009
I have experienced several instances when a lawyer has threatened to file a grievance with the Office of Lawyer Regulation (OLR) unless I withdraw a motion that I have made in a pending litigation matter. Is this ethical behavior?
It is not easy to decide whether such conduct is ethical or a violation of the Rules of Professional Conduct. Some attorneys would characterize such behavior as a “sharp practice” that is inappropriate and should not be used as a strategy when dealing with an opposing party. The Committee on Professional Ethics has, however, said that such conduct would be considered misconduct.
There is no Rule of Professional Conduct that speaks directly about this conduct. There is a rule that prohibits a lawyer from entering into an agreement with a client that would prohibit the client from filing a grievance with the OLR (SCR 20:1.8(h)(3)) but that is a different scenario. You are speaking of instances when a lawyer threatens the filing of a grievance with the OLR against another lawyer because of an action taken by that lawyer during the course of representation. Such a threat often is made as a tactical strategy to try to convince the other lawyer to either withdraw an argument or change her behavior.
There are two rules that relate to this scenario although they do not specifically address the situation you have described. SCR 20:3.1 addresses the conduct of a lawyer and provides as follows:
“(a) In representing a client, a lawyer shall not:
. . .
“(3) File a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or when it is obvious that such an action would serve merely to harass or maliciously injure another.”
Under this rule, a lawyer may not engage in behavior or conduct that is strictly designed to harass or intimidate another person, which could include opposing counsel. Of course, it is very difficult to actually prove that behavior or actions taken by an attorney are designed solely to harass or intimidate another attorney. It would be very difficult to prove that a statement made by one attorney that she was going to file a grievance with the OLR because of the conduct of another attorney was made specifically to harass or intimidate the other attorney.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
SCR 20:8.3 is the rule that requires a lawyer to report on the misconduct of another lawyer. Such requirement only applies when the lawyer knows that the other lawyer has committed a violation of the Rules of Professional Conduct and that the behavior speaks to the “honesty, trustworthiness, or fitness of the person as a lawyer in other respects.” Thus, the obligation to report on another lawyer is very narrowly focused and arises in very limited circumstances. Filing a grievance with the OLR may be an obligation of a lawyer only if the lawyer “knows” that the opposing counsel has violated a Rule of Professional Conduct.
The Committee on Professional Ethics addressed this conduct in Opinion E-01-01 as follows:
“The responsibility of a lawyer to report the misconduct of another lawyer is governed by SCR 20:8.3 and the obligation of all members of a self-regulating profession to assure observance of the Rules by their fellow professionals. Reporting misconduct of other lawyers must be accomplished within the framework for behavior established by the very Rules this obligation is meant to protect. This includes due attention to the lawyer’s duty of confidentiality, SCR 20:8.3(c) [sic, 1.6]; not advancing claims or factual positions that the lawyer knows are frivolous, SCR 20:3.1; not using means that have no substantial purpose other than to embarrass, delay, or burden a third person, SCR 20:4.4; or engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, SCR 20:8.4(c).
“A lawyer who seeks to gain a bargaining advantage by threatening to report another lawyer’s misconduct commits misconduct even if that lawyer believes that the other lawyer’s conduct raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness. Seeking such a bargaining advantage in such circumstances is inappropriate because reporting such misconduct is an obligation imposed by the Rules. SCR 20:8.3(a). See ABA Formal Ethics Opinion 94-383. Likewise, a lawyer commits misconduct by entering into any agreement to not report such misconduct. See In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (Ill. 1988).”
A lawyer who threatens another lawyer with the filing of a grievance with the Office of Lawyer Regulation may be acting in violation of the Rules of Professional Conduct for Wisconsin attorneys. It is certainly behavior that should be avoided.