Lawyers May Inform, Not Threaten, in Civil Matters
E-01-01: Threatening Criminal Prosecution or Professional
Discipline
Professional Ethics Committee Opinion E-01-01
considers whether lawyers may threaten criminal prosecution or
disciplinary action in relation to a civil matter.
by State Bar Professional Ethics Committee
Issued: March 5, 2001
Question
May a lawyer threaten to initiate a criminal proceeding against a
third person or a disciplinary action against an adverse lawyer in
relation to a civil matter?
Opinion
Threatening a civil action. Whether a lawyer may
threaten a criminal prosecution in a civil matter is addressed by SCR
20:3.10:
"A lawyer shall not present, participate in presenting or threaten to
present criminal charges solely to obtain an advantage in a civil
matter."
In Opinion E-87-5, the
State Bar Professional Ethics Committee addressed this issue under an
identically worded provision of the predecessor code to the Rules of
Professional Conduct. See SCR 20:39, Code of Professional
Responsibility. That opinion concludes that while a lawyer representing
a client in a civil matter may assist the client in providing a
prosecutor with information relating to an adverse party's probable
criminal conduct, threatening to present such information unless some
action is taken by the adverse party is prohibited. Therefore, the
opinion reasons a lawyer "informing adverse parties of their possible
criminal conduct while representing clients in civil matters against
them" is prohibited.
The Professional Ethics Committee now withdraws Ethics Opinion E-87-5.
The committee now opines that in a civil matter, a lawyer may
inform another person that their conduct may violate a criminal
provision provided the criminal conduct is related to the civil matter,
the lawyer has formed a good faith belief that the conduct complained of
constitutes a criminal violation, and the lawyer or the lawyer's client
has a duty or right to report the criminal violation. Informing someone
under such circumstances may involve informing them that the lawyer or
the lawyer's client intends to initiate a criminal action when the
lawyer or the lawyer's clients actually have formed the intention to do
so either as a matter of legal obligation or right.
The ABA Model Rules do not include a provision similar to SCR
20:3.10. The Restatement of the Law Governing Lawyers notes
that this exclusion was deliberate and based on the belief that the
provision was vague and overly broad and prohibited what would
constitute legitimate negotiating tactics. See § 98
Reporter's Note to Comment f. However, the Wisconsin Supreme Court chose
to include this provision in its version of the Rules of Professional
Conduct. Since the adoption of SCR
20:3.10, there have been no reported instances of a Wisconsin lawyer
being disciplined for a violation of this rule.
The few authorities that address similar rules in other states
suggest cautious enforcement. Whenever confronted with threats of
criminal action by a lawyer against a party adverse to the lawyer's
client, courts appear to have strained to find reasons why the mention
of criminal charges could be justified. See ABA/BNA Lawyer's Manual
of Professional Conduct at § 71:602-603. Grounds for
nonenforcement of this provision include noting that it was not clear
that the lawyer's sole purpose was to gain an advantage in the
civil action, distinguishing between informing an adverse party about
the criminal law as opposed to threatening criminal prosecution and
noting statutes in some states require giving notice of possible
criminal charges as part of bringing certain civil actions.
ABA Ethics Opinion 92-363 has noted that a lawyer may use the
possibility of presenting a criminal charge against an opposing party in
a private civil matter to gain relief for his client provided that the
criminal charge is related to the civil claim, both the civil claim and
the possible criminal charge are warranted by law and the facts of the
situation, and the lawyer does not attempt to exert improper influence
over the criminal process.
Threatening a disciplinary proceeding against another
lawyer. The obligation of lawyers to report the misconduct of
other lawyers is governed by SCR 20:8.3 (a). Beyond this mandatory
obligation to report such misconduct, lawyers must be mindful that
theirs is a self-regulating profession and that self government carries
with it special responsibilities including not only to observe the Rules
of Professional Conduct, but also to aid in securing their observance by
other lawyers. See Preamble to Rules of Professional
Conduct.
In Wisconsin Ethics Opinion E-89-16, this committee opined
that while presenting facts to a disciplinary authority regarding
another lawyer's misconduct during the course of representation should
be permitted, "threatening to present such charges 'unless' would
clearly violate SCR 20.39" (the identically worded predecessor to SCR
20:3.10). Neither SCR 20:3.10 or its predecessor, SCR 20.39, make
reference to reporting professional misconduct.
The committee now withdraws E-89-16 and opines 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); 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).
Wisconsin
Lawyer