Ethics Opinion 220
Threats to File Disciplinary Charges
Threats to file disciplinary charges, either against an attorney with Bar Counsel or against a non-attorney with a relevant professional board, for the sole purpose of gaining advantage in a civil matter are a violation of the Rules of Professional Conduct.
- Rule 8.4(g) (Misconduct)
The Committee has before it three related inquiries. Two practitioners inquire about the ethical propriety of threatening to file disciplinary charges against attorneys with bar counsel in order to gain advantage in negotiating a civil settlement. A third inquires about the propriety of threatening to file a complaint with certain professional associations of realtors and appraisers for the same purpose.
The first inquirer is an attorney whose client wishes to bring a malicious prosecution action against another attorney and his client arising out of the conduct of the second attorney and client in a previous action. The inquirer asks to what extent he may threaten, or hint about, filing a disciplinary complaint against the opposing attorney in order to coerce a settlement of the malicious prosecution claim.
The second inquiry arises in the context of a collection action by the successor counsel of a law firm against a former client of the law firm. During settlement negotiations, the defendant's counsel informed the inquirer that his client had requested that he prepare a complaint to be filed with Bar Counsel. The inquirer asks whether this reference to filing disciplinary charges in the course of settlement negotiations is unethical.
The third inquirer is an attorney representing a real estate professional in a malpractice action. In the course of settlement negotiations, opposing counsel has stated that his client has asked him to consider the filing of a complaint with the relevant associations of realtors and appraisers to seek the suspension or revocation of the inquiring attorney's client's license. The inquirer asks whether this constitutes a violation of the disciplinary rules.
The relevant disciplinary requirement in the Rules of Professional Conduct represents a change from that which governed in the Code of Professional Responsibility. Rule 8.4(g) provides that, "[i]t is professional misconduct for a lawyer to: . . . (g) seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter." The earlier prohibition, found in DR 7-105, was limited to the filing of or threat to file criminal charges. Neither the history nor the published comments to Rule 8.4 address the reasons for modifying the rule to include disciplinary charges. Nor do they define or otherwise explain the meaning of the term "disciplinary charges" as it is used in the Rule.1
- Filing or Threatening to File a Disciplinary Charge Against an Attorney
The prohibition against filing disciplinary charges encompasses, on its face, the threat to file disciplinary charges against attorneys as set forth in two of the inquiries.2 The only question under Rule 8.4(g) is whether the charges were threatened or filed "solelyto obtain an advantage in a civil matter." (emphasis added).3
The determination of for what purpose or purposes the disciplinary charges at issue were threatened is a factual question which this Committee is not equipped to decide. We do note, however, that Rule 8.3(a) creates an affirmative obligation upon a lawyer to inform the appropriate professional authority where the lawyer has "knowledge 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."4 The comments to Rule 8.3, at ¶ , explain that the use of the word "substantial" goes to the "seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware." The comments also state that the report should be made to the Office of Bar Counsel. Id.
If a complaint or report is filed with Bar Counsel in a good faith effort to comply with the provisions of Rule 8.3 it cannot be said to be filed solely for the purpose of gaining advantage in a civil matter.5 However, it is unlikely that a threat to file a disciplinary complaint could be viewed as a good faith effort to comply with Rule 8.3 since the obligation under that Rule is to report—and not to threaten to report—the relevant information.6 As a result, a threat to file a disciplinary charge is not protected under Rule 8.3.
Disciplinary charges threatened or filed for purposes other than gaining advantage in a civil matter may implicate other rules. These include principally Rule 3.1 which prohibits a lawyer from bringing frivolous claims. In addition, the threat of a disciplinary charge could constitute a violation of the relevant extortion and blackmail statutes, a concern expressed by the Jordan Committee as discussed above. Again, the question of whether violations of these Rules are presented in the inquiries under consideration involve legal and factual determinations that are beyond our scope and regarding which we do not express an opinion.
- Threats to File Disciplinary Charges Against Persons Other Than Attorneys
Rule 8.4(g), by its plain language, renders unethical any threat to file disciplinary charges solely in order to gain advantage in a civil matter. The type of disciplinary charge is not limited either in the Rule or in any published explanatory material. Indeed, interpreting the rule's prohibition to extend to filing charges against attorneys but not against non-attorneys would produce the anomalous result of permitting an attorney to file or threaten to file a disciplinary charge against an opposing party for the sole purpose of obtaining advantage in a civil matter but not against his or her attorney for the same reason. This Committee declines to endorse such a result. The rule applies equally to complaints threatened or filed against attorneys and non-attorneys.
Since the complaint referenced in the inquiry regarding the real estate professional could result in the suspension or revocation of a license, it is a disciplinary charge within the meaning of the rule. Again, the matter of whether the complaint is filed solely to gain advantage in a civil matter is a factual question which this Committee is not equipped to decide.
In conclusion, the Committee finds that threats to file disciplinary charges against either attorneys or non-attorneys solely to gain advantage in a civil matter violate Rule 8.4(g) of the Rules of Professional Conduct.
Inquiries: 85-9-34: 90-2-8; 90-5-24
Adopted: September 17, 1991
1. The only published explanation, which does not address why the words "disciplinary charges" were added to the prohibition, is contained in the statement which the Jordan Committee submitted to the Court of Appeals:
The Committee also added a new paragraph (g), which is substantially similar to DR 7-105. The problem dealt with in paragraph (g) is not specifically addressed by any other provision in the proposed Rules. The Committee felt that the conduct prohibited by paragraph (g), which is tantamount to common law blackmail, was serious enough, and its occurrence frequent enough, that a rule clearly forbidding that conduct was needed.
2. Prohibiting the threatened or actual filing of disciplinary charges against attorneys for the sole purpose of gaining advantage in a civil matter is in accordance with decisions of at least seven other jurisdictions. See Illinois State Bar Association Committee on Professional Responsibility, Opinion 87-7, 1/29/88; Indiana State Bar Association Legal Ethics Committee, Opinion 10 of 1985; the Professional Ethics Commission of the Board of Overseers of the Bar, Maine, Opinion 100 (10/4/89); Maryland State Bar Association Committee on Ethics, Docket 86-14; Massachusetts Bar Association Committee on Professional Ethics, Opinion 83-2; Michigan State Bar Committee on Professional and Judicial Ethics, Opinion CI-695 (10/18/81); Wisconsin State Bar Committee on Professional Ethics, Opinion E-89-16 (9/8/89).
3. Insofar as the first inquirer seeks to differentiate between threats and "hints" of threats, we find no relevant distinction. Any suggestion of filing a disciplinary charge for the sole purpose of gaining advantage in civil litigation falls within the scope of the rule.
4. The only exception to this requirement is where the information is confidential within the meaning of Rule 1.6. Confidentiality concerns do not appear to be implicated in any of the inquiries under consideration here.
5. The Michigan State Bar Committee on Professional and Judicial Ethics has determined that in the face of a similar reporting requirement, the suggestion of not reporting violations in return for favorable settlement is improper. Opinion CI-695 (10/18/81).
6. Rule 8.3 speaks in terms of "informing" the appropriate professional authority. Neither the Rule nor comments explain what precisely is meant by this term. Nonetheless, filing a disciplinary charge is clearly a method of informing the authority and this falls within its plain me