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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4378" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/05/Arrest-300x200.jpg" alt="" width="300" height="200">A New York lawyer&nbsp;representing a landlord was suspended earlier this month for conduct that included threatening a tenant with arrest and telling&nbsp;him that he was worthless and should commit suicide.
In its <a href="http://www.nycourts.gov/reporter/3dseries/2019/2019_02487.htm">opinion</a>, the court found that the lawyer violated&nbsp;<a href="https://filehost.thompsonhine.com/uploads/NYSBA_-_New_York_Rules_of_Professional_Conduct_-_Rule_3_4_9323.pdf" target="_blank" rel="noopener noreferrer">Rule 3.4(e)</a> of the state&rsquo;s&nbsp;Rules of Professional Conduct, which&nbsp;bars threatening to bring&nbsp;criminal charges solely to obtain an advantage in a civil matter, and meted&nbsp;out a four-month suspension.&nbsp;&nbsp;The case shines a light on&nbsp;threats of criminal charges under state ethics rules.
&ldquo;I gotta get this guy&rdquo;
A resident in one of the buildings that the lawyer&rsquo;s client owned allegedly used a website to post&nbsp;accusations that the landlord overcharged tenants.&nbsp;&nbsp;According to the court&rsquo;s disciplinary opinion, the lawyer sent a letter to the tenant, calling the posts defamatory and&nbsp;demanding that they be removed.&nbsp; Receiving no response after a week, the lawyer texted the tenant, &ldquo;We are filing [a] lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website.&rdquo;
Later that day, said the court, the lawyer phoned the tenant &mdash; who recorded the conversation.&nbsp; The lawyer told the tenant that &ldquo;you&rsquo;re one of those people in the world that really should just kill themselves.&rdquo;&nbsp; Then, apparently turning to someone else present in his office, the lawyer said about the tenant, &ldquo;start the lawsuit ... I need him arrested ... I gotta get this guy.&nbsp; He&rsquo;s gotta be arrested.&rdquo;&nbsp; The lawyer also told the tenant that his office was &ldquo;in contact&rdquo; with the District Attorney&rsquo;s office, and that &ldquo;you&rsquo;re gonna be paying for this heavily for the rest of your life.&rdquo;
The grievance committee charged the lawyer with threatening criminal charges solely to obtain an advantage in a civil matter; there were other disciplinary charges based on separate conduct, as well.&nbsp; At the disciplinary hearing, the lawyer presented no evidence that his firm ever filed suit against the tenant.
The four-month suspension that the First Department of the New York Appellate Division handed down was partly based on finding that the lawyer was a repeat offender and failed to take full responsibility for his conduct.&nbsp; (The referee had found that the lawyer was sorry that his actions had&nbsp;caused his disciplinary problems, but&nbsp;had not properly apologized or recognized &ldquo;that his aggressive litigation tactics must be controlled.&rdquo;)
No Model Rule...
Interestingly, while New York and many other jurisdictions have&nbsp;ethics rules&nbsp;barring&nbsp;threats of criminal prosecution to gain an advantage in a civil matter&nbsp;(see, e.g.,&nbsp;<a href="http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf">Ohio</a>, <a href="https://www.dcbar.org/bar-resources/legal-ethics/amended-rules/rule8-04.cfm">D.C</a>., <a href="https://www-media.floridabar.org/uploads/2019/04/Ch-4-2019_09-MAR-RRTFB-3-29-19.pdf">Florida</a>, <a href="https://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/IV--NON-CLIENT-RELATIONSHIPS/thing">Texas</a>, <a href="http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_3.10-Exec_Summary-Redline.pdf">California</a>), and&nbsp;the concept was embodied in&nbsp;DR 7-105&nbsp;under the former Code of Professional Responsibility,&nbsp;the Model Rules omit this specific prohibition.&nbsp; The ABA explained in&nbsp;Formal Opinion 92-363 that&nbsp;the drafters believed that extortionate, fraudulent or otherwise abusive threats were dealt with by other more general rules (e.g., <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/">Model Rules 4.4</a>, &ldquo;Respect for Rights of Third Persons,&rdquo;&nbsp;and <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">8.4</a>, &ldquo;Misconduct&rdquo;).
Where is the line?
As&nbsp;ethics commentator <a href="https://law.hofstra.edu/directory/faculty/emeritus/simon/">Roy D. Simon</a> points out in his New York Rules of Professional Conduct Annotated, threats to present criminal charges are &ldquo;at the heart&rdquo; of Rule 3.4(e).&nbsp; &ldquo;The thinking is that if a person has engaged in criminal conduct, it ought to be brought to the attention of the appropriate authorities, not merely threatened,&rdquo; he says,&nbsp;&ldquo;and if a person has not engaged in criminal conduct then there is no basis for threatening to bring criminal charges.&rdquo;&nbsp; Threats that are not carried out (as in the case discussed), may especially put a lawyer on risky ground.
What about the New York requirement that the threat&rsquo;s purpose is &ldquo;solely&rdquo; to get leverage in a civil matter (language that varies across jurisdictions)?&nbsp; Simon notes that &ldquo;courts and disciplinary authorities have sometimes paid little attention to the word.&rdquo;&nbsp; Indeed, it&rsquo;s not analyzed in the case discussed here.&nbsp; Some ethics opinions do call attention to the distinction raised by the word.&nbsp; See <a href="https://filehost.thompsonhine.com/uploads/DC-Legal-Ethics-Opinion_339_e81b.pdf" target="_blank" rel="noopener noreferrer">D.C. Ethics Op. 339</a> (can include citation to criminal statute in demand letter as long as threat is not solely to gain advantage in collection matter).
But that possible lack of clarity&nbsp;would seem to create some uncertainty (and therefore risk) in knowing where the ethical&nbsp;line is, particularly where the lawyer&rsquo;s conduct&nbsp;presents a closer call than the court found in this case.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Arrest threat draws suspension for NY lawyer