EYE ON ETHICS by David D. Dodge
Threatening Criminal Prosecution
Those of us who have been around the practice
for awhile remember the rather clear prohibition against making threats
of criminal prosecution against an opposing party in order to gain an
advantage in a civil case. This was set forth in old DR 7-105(a) of the
Code of Professional Responsibility that existed in Arizona until we
adopted the ABA’s Model Rules of Professional Conduct in 1983.
When that happened, all references to the prohibition were deleted,
leading many lawyers to believe that making such threats was now considered acceptable ethical behavior. If you are one of these lawyers, you
need to keep reading.
Almost without exception, bar associations, courts and legal commentators who have addressed the issue, as well as the drafters of the Model
Rules, have concluded that abusive threats of criminal prosecution were in
fact adequately covered by other more general prohibitions in the Model
Rules, and there was no need to address such threats specifically. 1 These
general provisions are ER 8. 4(b) 2 (prohibition against a lawyer committing
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects); ER 8. 4(c) (prohibition against
a lawyer engaging in conduct that is prejudicial to the administration of
justice); ER 3. 1 (a lawyer shall not bring a proceeding unless there is a
good-faith basis in law and fact); ER 4. 4 (a) (a lawyer shall not use means
that have no substantial purpose other than to embarrass, delay or burden
any other person); and ER 4. 1(a) (a lawyer shall not make a false statement
of material fact or law to a third person). This last rule would apply to
those making a threat with no intention of carrying it out.
What has been overlooked is that knowingly obtaining or seeking to
obtain “property” by means of threatening to bring criminal charges
against anyone is considered to be extortion, a Class 4 felony in Arizona. 3
And engaging in extortionate acts by lawyers is generally discouraged
here and elsewhere.
Acts that would otherwise be considered extortionate may not be
considered to be illegal or unethical generally if ( 1) the contemplated
criminal matter is directly related to the client’s civil claim; ( 2)
the lawyer has a well-founded belief that the civil claim and the
potential criminal charges are warranted by the law and the facts;
and ( 3) the lawyer does not attempt to exert or suggest improper influence over the criminal process. At least this was the conclusion of the ABA Standing Committee on Ethics and
Professional Responsibility. 4 The folks who write ethics opinions
at the State Bar have tried to make it even simpler: Threats of
criminal prosecution are not per se violations of the Rules of
Professional Conduct. Only if such threats run afoul of a specific ethical proscription or violate Arizona’s criminal extortion
statute would such threats be considered unethical. 5
Against these general and well-intentioned guideposts, bar
associations, courts and legal commentators have not been all
that consistent in their applications, indicating that caution and
temperance are still required in this area. 6 Some states, including
Arizona, have adopted the Model Rules of Professional Conduct
David D. Dodge is Of Counsel with
the Phoenix law firm Lorona, Steiner,
Ducar, Coughlin & Horowitz, PLLC.
He is a former Chair of the
Disciplinary Commission of the
Arizona Supreme Court.
without reference to the old DR 7-105(a)
prohibitions; others have specifically carried
those provisions over into their present ethical rules, 7 and courts are not always in
agreement over what circumstances need be
present before a statement made about
potential criminal action may be unethical. 8
Lawyers contemplating using the threat
of criminal prosecution while representing
a client in a civil matter still need to be cautious and heed the most important admonitions set forth in ABA Formal Opinion
No. 92-363: Make sure the criminal matter
is directly related to the client’s civil claim
and that the lawyer has a well-founded
belief that the civil claim and the potential
criminal charges are warranted by the law
and the facts. 9 AZ AT
A new ethics
opinion is on
page 63.
Ethics
Opinions and
the Rules of
Professional
Conduct are
available at
www.myazbar.
org/Ethics
endnotes
1. 2 GEOFFREY C. HAZARD & W. WILLIAM
HODES, THE LAW OF LAWYERING (3d ed.
1985), at § 40. 4.
2. Rule 42, ARIZ.R.S.CT.
3. A.R.S. § 13-1804 A. 5 and C.
4. ABA Formal Op. No. 92-363 (July 6,
1992) (Use of Threats of Prosecution in
Connection with a Civil Matter).
5. Ariz. Ethics Op. 91-07 (Mar. 7, 1991).
6. An example that has been given is the threat
of criminal sanctions imposed for stopping
payment on a check. Cf. Decato’s Case, 379
A.2d 825 (N.H. 1977), Fla. Ethics Op. 85-
3, Ga. Ethics Op. 26 (1980) and Utah
Ethics Op. 71 (1979) [not ethical] with
New Mexico Ethics Opinion 1987-5 [ethi-cal]. There are other cases collected at
Annotated Model Rules of Professional
Conduct (ABA Center for Professional
Responsibility, Sixth Edition), at 417.
7. A description of how other states have
specifically incorporated old DR 7-105 into
their present ethics rules is found at
ABA/BNA LAWYERS’ MANUAL ON
PROFESSIONAL CONDUCT, at ¶ 71:601.
8. Cf. In Re Vollintine, 673 P.2d 755 (Alaska
1983) (allusion to a criminal prosecution in
a letter constituted a threat) with In Re
McCurdy, 681 P.2d 131 (Ore. 1984) (mere
mention of criminal penalties does not show
specific intent to threaten).
9. See Note, Recent Developments in the Ethical
Treatment of Threats of Criminal Referral in
Civil Debt Collection Matters, 21 GEO. J.
LEGAL ETHICS 935 (2008).
