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Crossing the line: Threatening to bring disciplinary or criminal charges to obtain an advantage in a civil matter

7/26/2022

By Mary F. Andreoni, ARDC Ethics Education Senior Counsel

Introduction

If you’ve ever had an opposing counsel threaten you with filing a disciplinary complaint or criminal charges, you’ve probably wondered if opposing counsel crossed an ethical line. On the other hand, if you’ve come across potentially unethical conduct by an opposing counsel, you may have some concerns about how to handle this during the pendency of a civil matter without being accused of unethically threatening another lawyer. But when is a “threat” considered to be made “to obtain an advantage in a civil matter” that could subject a lawyer to regulatory scrutiny?

ILRPC Rule 8.4(g) (formerly ILRPC Rule 1.2(e)

Rule 8.4(g) (Rule 1.2(e) prior to 2010) [1] provides that it is professional misconduct for a lawyer to "present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter."

It is not always easy to determine a Rule 8.4(g) violation. A violation is based on what was the lawyer’s intent or purpose in making the communication. That intent is determined from the content and context of the communication. Although there is no Comment that specifically covers Rule 8.4(g), disciplinary caselaw instructs that a violation of Rule 8.4(g), or its predecessor Rule 1.2(e), involves three necessary actions: (1) a clear or unambiguous threat, (2) communicated to the intended target of the prosecution, and (3) a clear connection between the threat and a purpose or benefit sought to be gained in a civil matter. E.g., In re Schaaf , 1999PR00064, M.R. 17387 (Mar. 23, 2001) (assistant state’s attorney suspended one year, partially stayed by conditional probation, when he sent a letter to a former client, seeking to collect on an unpaid bill for work he had performed while in private practice, stating that he had filed a criminal complaint against her and offering to have the sheriff hold off on the warrant for her arrest if she paid the balance due); In re Martin, 2011PR00048, M.R. 26610 (May 16, 2014) (lawyer suspended six months for threatening to file a grievance against another lawyer with the Michigan State Bar if opposing counsel did not withdraw from representing his clients in the three civil lawsuits the lawyer had filed against them and reiterating that threat during a court proceeding a few days later); In re Montgomery, 2014PR00101, M.R. 27443, (Sept. 21, 2015) (lawyer suspended for eight months and until further order of the Court for making false and frivolous allegations of professional misconduct against opposing counsel to the ARDC that were found to have been made in order to get opposing counsel to withdraw an appeal of a judgment that had been entered against her clients in a civil matter); cf. In re Zeas, 2014PR00069 (H.Bd. Jan. 14, 2016) (complaint dismissed because statements in lawyer’s letter to opposing counsel were not sufficient to constitute a clear threat to pursue criminal charges as the letter did not mention contacting any law enforcement agency or other authority, did not specifically threaten any criminal prosecution, and the statements could be reasonably interpreted as a statement of the lawyer's intention to raise these matters in support of his motion for sanctions in the civil case); In re Denison, 2013PR00001, M.R. 27522 (Sept. 21, 2015) (charge alleging Rule 8.4(g) violation dismissed as statements lawyer made in blog posts that criminal activity was allegedly occurring in a civil matter did not clearly communicate a threat to seek criminal prosecution against judges and lawyers involved in the civil matter in order to induce them to act differently).

Relation to Other Rules

Disciplinary charges threatened or filed for purposes other than to obtain an advantage in a civil matter may implicate other rules however. These include one or more of the general restraints on advocacy principally found in Rule 3.1 (Meritorious Claims and Contentions); Rule 3.4 (Fairness to Opposing Party and Counsel); Rule 4.1 (Truthfulness in Statements to Others); Rule 4.4 (Respect for Rights of Third Persons); and Rule 8.4(c) (Honesty, Trustworthiness or Fitness) and (d) (Prejudicial Conduct to the Administration of Justice). See, e.g., In re Rothman, 2000PR00052, M.R. 17963 (Mar. 27, 2002) (lawyer suspended nine months for, inter alia, engaging in dishonest conduct when he accused opposing counsel without making any investigation into the truthfulness of his accusations, even though he had ample time to do so); In re Olivero, 1998PR00054, M.R. 17228 (Mar. 22, 2001) (lawyer suspended six months for knowingly making a false complaint to the ARDC about another attorney and testifying falsely before the ARDC in its investigation of that charge); In re Denison, supra (lawyer suspended three years and until further order of the Court for repeatedly making false statements concerning the integrity of judges and others in weblog postings concerning a guardianship case).

ISBA Opinion No. 20-03 (May 2020)

ISBA Opinion No. 20-03, issued in May 2020, provides some helpful guidance. The opinion addressed the question of whether a lawyer can point out the possibility of prosecution in a demand letter to a client’s employer in order to try to settle a civil claim. The committee opined that a lawyer does not violate Rule 8.4(g) by sending a demand letter to her client’s employer which accurately sets forth the law and includes a statement about the potential for both civil and criminal liability. However, the demand letter should only state that civil remedies will be pursued by the lawyer if the demand is not met. The demand letter should not state that the lawyer will pursue criminal prosecution or agree to withhold criminal prosecution in exchange for the payment of the client’s demand. Op. at p. 4; citing In re Zeas, supra and Ill. State Bar Ass’n. Op. No. 12-01 (Jan. 2012).

The opinion is Ill. State Bar Ass’n Ethics Opinion, No. 20-03 (May 2020).

Reporting Potential Misconduct by Opposing Counsel

Communicating with another counsel regarding the other counsel’s possible ethical violation and asking whether opposing counsel denies the misconduct or can cast doubt on whether it occurred in order to confirm information necessary to satisfy the reporting attorney that in fact there was misconduct which must be reported, is not unethical. See In re Rothman, supra. Crossing the line from simply confirming misconduct to conditioning the filing of a mandatory report of misconduct to the ARDC under ILRPC Rule 8.3, upon the “unethical” lawyer’s compliance with a particular demand, opens the door to a potential Rule 8.4(g) violation. If the reporting lawyer has actual knowledge that opposing counsel in fact committed the misconduct and a duty to report exists, then the misconduct should be reported with no strings attached.[2]

Rule 8.3(a) is silent on the question of when a lawyer must report another lawyer’s misconduct particularly during the pendency of a matter. If a lawyer has reasonable grounds to believe that a mandatory report is required, report of the violation should be made as soon as practical. Factors to consider are the attorney’s duties to their client and the judicial system, the potential for prejudice or harm if a report is delayed, and whether reporting will potentially add a collateral issue which can adversely affect the fair and orderly conduct of the proceedings. See Answering the Top Ten Questions About a Lawyer’s Duty to Report Misconduct, ARDC website at

https://www.iardc.org/Files/Publication_TOC_Illinois_Courts_Connect_Articles.pdf.

Conclusion

The ARDC Ethics Inquiry phoneline gets this question somewhat frequently although it not commonly raised in grievances and in disciplinary prosecutions [3]. Most lawyers tread carefully when dealing with this topic but some lawyers are not so cautious. As always, if you have questions regarding your ethical obligations, please call us at 312-565-2600 or visit our website at www.iardc.org.



[1] The ABA Model Rules do not include a rule that explicitly prohibits threats of criminal prosecution or disciplinary charges. DR 7-105(a) of the ABA Model Code of Professional Responsibility, which prohibited threats of criminal prosecution in order to gain an advantage in a civil matter, was not included when the Model Rules were adopted in 1983. The primary rationale cited behind the omission was that other rules, such as Rule 3.1 Meritorious Claims and Contentions and 3.4 Fairness to Opposing Party and Counsel, covered this conduct. Illinois retained the rule and added threats involving the presentation of disciplinary charges in the wake of the In re Himmel decision in 1989, to counter the concern that there would be widespread complaints and frivolous grievances filed by lawyers threatening each other with Himmel reports. See A Lawyer’s Duty to Report Another Lawyer’s Misconduct: The Illinois Experience, Mary T. Robinson, ABA, at p. 3.

[2] On a related issue, it is grounds for discipline for a lawyer, whether as a party or as a lawyer for a party, to agree or seek to agree to condition any settlement of a claim for professional misconduct on another person's promise not to report the misconduct, to withdraw a disciplinary complaint, to not cooperate with the investigation or prosecution conducted by the ARDC, Rule 8.4(h).

[3] Of the 19,925 disciplinary grievances filed between 2017 and 2021, only 153 were categorized as a Rule 8.4(g) allegation. There were six disciplinary complaints filed since January 1, 2010, alleging a violation of Rule 8.4(g) or its predecessor Rule 1.2(e). See ARDC Annual Reports 2017-2021 found on the ARDC website at https://www.iardc.org/About/AnnualReports.