I am not a fan of lawyers who threaten other lawyers with disciplinary complaints.
Actually, I take that back. It’s their threats, not the lawyers who make them, that I don’t like.
Last week, an appeals court in Texas upheld a lower court’s order imposing a 4-month probated suspension on a lawyer who threatened another with a disciplinary complaint solely to gain an advantage in a civil matter. Law360 (sub. req.) reported the story. The opinion is here.
Background: on behalf of a company he owned, Lawyer sued an insurance company for refusing to pay a claim after a fire. An issue at trial was why Lawyer had waited so long to report the claim. He argued that he’d delayed reporting on the advice of counsel. So, the insurance company sought testimony and discovery from Lawyer’s counsel, prompting Lawyer to assert the attorney-client privilege. Attorneys for the insurance company made several arguments that Lawyer had waived the privilege, including the crime-fraud exception.
At Lawyer’s request, the court held an evidentiary hearing on the crime-fraud exception. The court found that it applied. The trial of the coverage claim resumed.
When it did, Lawyer threatened one of the insurance company’s attorneys with a disciplinary complaint. Specifically, on a Friday, and referring to the attorney’s allegation that Lawyer had engaged in a crime or fraud, Lawyer sent an e-mail in which he threatened a disciplinary complaint:
- “unless, by noon on Monday, you announce in open court that you now realize that there was no factual basis for your allegations, and that you are sorry for having made them and that you now withdraw them ENTIRELY.”
- “If you do make the above statement – the language of which will have to be agreed upon – I will release you and [your firm] from all potential liability in connection with the statement you made and will agree not to file a grievance against you or [your firm] with the state bar or related authorities.”
- “Think about it carefully. Choose wisely.”
Now, Vermont doesn’t have a rule that specifically prohibits threatening a disciplinary complaint to gain an advantage in a civil matter. Rather, we have Rule 4.5, which prohibits presenting, or threatening to present, criminal charges to gain an advantage in a civil matter.
Texas, however, has a rule that specifically applies. It’s Texas Disciplinary Rule 4.04(b)(1):
- (b) A lawyer shall not present, participate in presenting, or threaten to present (1) criminal or disciplinary charges solely to gain an advantage in a civil matter.
Lawyer argued that he made the threat to clear his name and, therefore, it was not made “solely” to gain an advantage in the civil trial. He also argued that “gain an advantage” means a quid pro quo in which he’d have received something in return for not filing the complaint.
The court rejected each argument. With respect to the latter, the court noted that Lawyer gained the advantage of distracting the opposing attorney from focusing on preparing and presenting his case.
Now, the fact that Vermont’s rules don’t specifically prohibit threatening another with a disciplinary complaint shouldn’t be taken as a sign that it’s a good idea. As the Texas court concluded:
- “Threatening to use the criminal or disciplinary process solely to coerce a party in a private matter improperly suggests that a lawyer can manipulate the criminal process for personal gains and manipulate the legal system for personal advantage.”
The court noted that the suggestion of such improper influence is an “abuse” of the system that lessens public confidence in the profession.
Don’t threat on me.