Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

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.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-1861" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2015/08/Backfire-300x217.jpg" alt="&#1055;&#1077;&#1095;&#1072;&#1090;&#1100;" width="300" height="217">We&rsquo;ve all been there.&nbsp;&nbsp;Opposing counsel has acted like a jerk&nbsp;throughout your case.&nbsp; But now,&nbsp;counsel has crossed the line with conduct that you think is not merely uncooperative or dilatory, but also unethical.
Thinking of telling&nbsp;your opponent&nbsp;that you&rsquo;re going to file&nbsp;a&nbsp;complaint with disciplinary authorities about that unethical&nbsp;conduct?&nbsp; You should probably take some deep breaths and think again about that threat.&nbsp; As a recent <a href="http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2196-formal-opinion-2015-5-whether-an-attorney-may-threaten-to-file-a-disciplinary-complaint-against-another-lawyer">ethics opinion</a> from the Association of the Bar of the City of New York (ABCNY)&nbsp;points out, making that threat may be unethical conduct on your part, if:
<ul>
<li>you are ethically required&nbsp;to actually report another lawyer&rsquo;s&nbsp;misconduct, and you&nbsp;instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer; or</li>
<li>you lack a&nbsp;good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule; or</li>
<li>your&nbsp;threat of disciplinary charges has no substantial purpose other than to embarrass or harm; or</li>
<li>your threat of disciplinary charges&nbsp;violates other substantive laws, such as criminal statutes that prohibit extortion.</li>
</ul>
No threats to gain leverage
Limiting threats in this way doesn&rsquo;t mean that you have nothing to say to that troublesome opposing counsel, says the ABCNY committee.&nbsp;&nbsp; You can confront&nbsp;opposing counsel with evidence of the misconduct, confirm whether&nbsp;she denies it or can explain it,&nbsp;and&nbsp;if appropriate,&nbsp;notify her as a courtesy that you intend to file disciplinary charges.&nbsp; See Roy D. Simon, <a href="http://www.newyorklegalethics.com/threatening-to-file-grievance-against-opposing-counsel/">Threatening to File Grievance Against Opposing Counsel</a>&nbsp;(cited by the ABCNY committee).
But&nbsp;&ldquo;what the attorney may not do,&rdquo; the committee explained,&nbsp;&ldquo;is condition the handling of a mandatory grievance on compliance with a particular demand.&rdquo;&nbsp; So,&nbsp;even if you are convinced of the ethics violation, &ldquo;it would be improper, in the words of Professor Simon, to &lsquo;invit[e] the opposing lawyer to bargain away the grievance.&#8217;&rdquo;
In other words, under this New York opinion you can&rsquo;t use a disciplinary-charge threat in order to gain leverage for your client.&nbsp; If the conduct is really an ethical violation, you must analyze whether you have a duty to report it under New York&rsquo;s version of<a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct.html"> Model Rule 8.3(a)</a>, and if so, you must pull the trigger, not just make a threat.
Under Model Rule 8.3(a), if you know that &ldquo;another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer&rsquo;s honesty, trustworthiness or fitness as a lawyer in other respects,&rdquo; you &ldquo;shall&rdquo;&nbsp;inform the proper authority.
Jurisdictions with express prohibitions
The <a href="https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=50671" target="_blank" rel="noopener">New York Rules of Professional Conduct</a>&nbsp;actually lack a direct rule on threats to file disciplinary complaints.&nbsp; Therefore, the ABCNY ethics committee had to&nbsp;look to other ethics opinions and several other rules in order to reach its result, including NY Rules 3.1(b), 4.1(a) and 8.4(c).&nbsp; (Likewise, the ABA Model Rules don&rsquo;t address disciplinary-charge threats&nbsp;directly, although ABA Formal Ethics Op. 94-383 says that other rules &ldquo;constrain&rdquo; such threats.)
In contrast, other jurisdictions have express rules barring improper disciplinary-charge threats. &nbsp;They include: &nbsp;my home state of Ohio (<a href="http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf">ORPC 1.2(e)</a>); Illinois (<a href="http://www.illinoiscourts.gov/supremecourt/rules/art_viii/ArtVIII_NEW.htm#8.4">IRPC 8.4(g)</a>); California (<a href="http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule5100.aspx">CRPC 5-100(A)</a>); the District of Columbia (<a href="https://dcbar.org/For-Lawyers/Legal-Ethics/Rules-of-Professional-Conduct/Maintaining-the-Integrity-of-the-Profession/Misconduct" target="_blank" rel="noopener">DCRPC 8.4(g)</a>); Texas (<a href="http://legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/IV--NON-CLIENT-RELATIONSHIPS/thing.aspx">TDRPC 4.04(b)</a>); and Florida (<a href="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/12/Florida-Bar-Rule-4-3.4-Fairness-to-Opposing-Party-and-Counsel-December-2019.pdf" target="_blank" rel="noopener">FRPC 4-3.4(h)</a>).
And lawyers have gotten themselves into disciplinary trouble by improperly threatening to bring disciplinary charges against another lawyer. &nbsp;See, e.g., <a href="https://www.kscourts.org/Cases-Opinions/Opinions/Published/In-re-Pyle" target="_blank" rel="noopener">In re Pyle</a> (Kan. 2004) (public censure for threatening to report opposing counsel to disciplinary agency unless settlement reached); <a href="https://www.courtlistener.com/opinion/1058975/barrett-v-virginia-state-bar/">Barrett v. Va. State Bar</a>&nbsp;(Va. 2005) (threats to seek disbarment of party&rsquo;s counsel if she did not withdraw violated Rule 3.4(i); remanded to determine sanction).
Think twice
The take-away:&nbsp; check your jurisdiction&rsquo;s own rules and ethics opinions&nbsp;(as always), and even&nbsp;without an express prohibition, you should think twice about threatening to bring a disciplinary charge against another lawyer &mdash; it just may backfire against you.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Threat to file disciplinary complaint can backfire