Tuesday, June 14, 2011

Is it Legal to Threaten the filing of a Criminal Complaint to Gain an Advantage in a Civil Case?

I came across an interesting issue today and I thought it would be perfect for the first post of my blog. There's quite a lack of information out there on Nevada laws, statutes and professional rules for attorneys. So I thought it would be good for me to start posting some of the unique and interesting things that I learn about legal practice as I come across them in my work.

So on to my first question: Is it illegal, or unethical, for an attorney to threaten to file a criminal complaint against an opposing party (assuming there is an actual basis for the criminal complaint), to gain an advantage in a civil action?

The answer is probably not what you would expect:

Under the ABA Model Code of Professional Responsibility, threats of criminal prosecution in order to gain an advantage in a civil case were prohibited. DR 7-105(a). In 1983, the Model Rules of Professional Conduct were adopted (1986 in Nevada), and that provision was dropped. This resulted in the ABA Standing Committee on Ethics and Professional Responsibility issuing formal opinion 92-363 – Use of Threats of Prosecution in Connection with A Civil Matter, which reached the following conclusion:
…[T]he Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges against the opposing party in a civil matter to gain relief for her client, provided that the criminal matter is related to the civil claim, the lawyer has a well founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process. It follows also that the Model Rules do not prohibit a lawyer from agreeing, or having the lawyer’s client agree, in return for satisfaction of the client’s civil claim for relief, to refrain from pursuing criminal charges against the opposing party as a part of a settlement agreement, so long as such agreement is not itself in violation of law.
What about the threat of filing a disciplinary complaint? See Formal Opinion 94-383, Use of Threatened Disciplinary Complaint Against Opposing Counsel, which concludes:
A lawyer’s use of the threat of filing a disciplinary complaint or report against opposing counsel, to obtain an advantage in a civil case, is constrained by the Model Rules, despite the absence of an express prohibition on the subject. Such a threat may not be used as a bargaining point when the subject misconduct raises a substantial question as to opposing counsel’s honesty, trustworthiness or fitness as a lawyer, because in these circumstances, the lawyer is ethically required to report such misconduct. Such a threat would also be improper if the professional misconduct is unrelated to the civil claim, if the disciplinary charges are not well founded in fact and in law, or if the threat has nonsubstantial purpose or effect other than embarrassing, delaying or burdening the opposing counsel or his client, or prejudicing the administration of justice.
So there you have it. If you have reason to believe that a criminal complaint would be warranted and the criminal complaint is related to the civil claim, there's nothing wrong with using it to your advantage in the civil case, according to the Model Rules.

On the other hand, threatening to file a disciplinary complaint against opposing counsel to gain an advantage might not be a good idea.

Remember, none of this is advice. I am not your lawyer until you pay me. I encourage you to do your own research on this topic and arrive at your own conclusions. And always, let me know your opinions on this topic, or any other legal topic in the comment section.

If you have any questions regarding this topic, or any other litigation related matter, contact attorney Brandon McDonald by e-mail Or for more information about attorney Brandon McDonald, visit my Profile, or my firm's website.