Last month, the Association of the Bar of the City of New York Committee on Professional Ethics put out a thorough Formal Opinion addressing when it is unethical for an attorney to threaten to file a disciplinary complaint against another lawyer. While Formal Opinion 2015-5 is a well-written opinion overall, it is a sprawling one that spans some 6 to 10 written pages depending on the format in which you view it. Truth is though it has to be that lengthy and complex because New York’s ethics rules lack the kind of clear ethics rule we have adopted in Tennessee on this very subject.
In Tennessee, after our 2011 revisions to the rules, RPC 4.4(a)(2) specifically applies the same standards to threats about disciplinary complaints as threats about criminal charges: “In representing a client, a lawyer shall not … threaten to present a criminal or lawyer disciplinary charge for the purpose of obtaining an advantage in a civil matter.” Thus, our rule is simple and straightforward. Our rule only leaves room in a few places for hair-splitting. Things like what constitutes a “threat,” and when is something being pursued to gain an advantage in a civil matter. Both of those issues were things that the NYC opinion wrestles with a bit even though not in the context of a rule directly on point. I tend to think they elucidate a very useful explanation of where to draw the line on whether something is a “threat” — “merely advising another lawyer that his conduct violates a disciplinary rule or could subject them to disciplinary action does not constitute a ‘threat’ unless it is accompanied by a statement that you intend to file disciplinary charges unless the other lawyer complies with a particular demand.”
Because New York’s otherwise most pertinent rule – New York Rule 3.4(e) — only extends to threatening to pursue criminal charges, the NYC Bar opinion ends up having to wrestle with lots of other issues to get to the relatively not-so-helpful conclusion that making a threat “may” violate the ethics rules:
- It explains that it is unethical for a lawyer to threaten to bring a disciplinary complaint when New York’s Rule 8.3 would require reporting. This requires some explanation because the threat is wrong not in how it treats the recipient of the threat but because the threat implies a willingness to not to do something ethically required of the one making the threat. Of course, that only answers the question as to a specific set of threats threats to turn someone in for something that is the kind of serious ethical infraction that would trigger RPC 8.3 reporting obligations.
- It discusses the usual litany of other rules not directly on point that can be a problem, such as RPC 3.1 which prohibits pursuit of frivolous claims or assertions (so a lawyer can’t threaten a frivolous disciplinary complaint in the same way they shouldn’t be threatening someone with the filing of a civil lawsuit they know is frivolous).
- It discusses RPC 4.4(a)(1)’s prohibition on conduct that has no substantial purpose other than to harass or embarrass. Which of course isn’t much helpful if you have questions about whether obtaining an advantage in litigation can be viewed as a substantial purpose.
- It discusses various shades of RPC 8.4 including the idea that you cannot engage in a threat that would amount to the crime of extortion.
When all of those provisions are thrown into the kettle, then the NYC Bar opinion, like other jurisdictions that do not have a straightforward rule like Tennessee’s, hit on an overall notion that a lawyer has to have a good faith belief that there has been a disciplinary violation in order to be able to make the threat. Again, though speaking practically that isn’t much help, because threats of pursuit of a disciplinary complaint about something that the threatening lawyer didn’t even have a good faith belief aren’t the kind of powerful threats likely to gain any real leverage.
So if the idea is that, as a matter of public policy those in a self-regulating profession ought not be able to threaten to wind up the springs of self-regulation in order to gain leverage in a civil proceeding, then Tennessee has done things the right way by simply adopting a rule that says in clear, straightforward terms that you can’t do that.