Ethics Advisory Opinion No. 03-04

Issued October 14, 2003
¶1 Issue
: May a lawyer threaten to present criminal charges against an opposing party or witness during negotiations in a private civil matter?

¶2 Opinion: In the course of representing a client in a civil matter, it is not per se unethical for a lawyer to threaten that the client may pursue criminal charges against an adverse party where the civil and criminal matters are related. However, such a threat will be a violation of the Utah Rules of Professional Conduct if it constitutes “extortion,” if the lawyer does not have a reasonable belief that such charges are warranted by the law and the facts, or if it involves “abusive treatment” of a witness.
¶3 Background: This query arose when counsel, during a mediation, stated that the opposing party’s witness was in violation of Utah law and that the County Attorney’s office “would be interested” to learn of the alleged violation.
¶4 The Former Rule. Prior Disciplinary Rule 7-105 of the Model Code of Professional Responsibility barred a lawyer from using criminal charges to gain leverage in a civil action: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”1 The stated intent of DR 7-105 was to prevent lawyers from using the criminal justice system for oppressive purposes, and the rule set the boundaries of acceptable lawyer conduct clearly.
¶5 The drafters of the American Bar Association Model Rules of Professional Conduct (“Model Rules”), however, deliberately left out the provisions of DR 7-105. The rationale behind this omission was the drafters’ belief that “extortionate, fraudulent, or otherwise abusive threats were covered by other, more general prohibitions in the Model Rules and thus that there was no need to outlaw such threats specifically.”2 The prior rule was thought to be overbroad because it prohibited legitimate pressure tactics and negotiation strategies.3 The current Utah Rules of Professional Conduct also include no analog to DR 7-105, but instead prohibit a lawyer from using “means that have no substantial purpose other than to embarrass, delay or burden a third person”4 and from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation [or] . . . in conduct that is prejudicial to the administration of justice.”5
¶6 ABA Opinion 92-363: The American Bar Association addressed the permissibility of threats in 1992 in Formal Opinion 92-363 (“Opinion 363”). Opinion 363 concluded that a lawyer may use the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for the client, as long as the criminal and civil matters are related, the lawyer has a reasonable belief that threat is warranted by the law and the facts, and the lawyer does not suggest she possesses improper influence over the criminal process or try to exert such influence.6 Correspondingly, a lawyer may agree to refrain from presenting criminal charges as part of a settlement so long as the agreement does not violate applicable law.7
¶7 The same factors apply to threats against an opposing party’s witness. Opinion 363 notes that “abusive treatment” of witnesses may implicate Model Rule 4.4. Abusive treatment exists if the lawyer’s purpose in suggesting charges may be brought is merely to embarrass, delay or burden a third person. If, however, the lawyer has a well-founded belief that criminal charges related to the civil action may be justified, and the lawyer does not suggest the presence of improper influence over the criminal process, the conduct is not abusive.
¶8 Analysis: Given the deliberate omission of DR 7-105 from the current Model Rules and the reasoning of Opinion 363, we conclude that threats of possible criminal charges are sometimes permissible under the Utah Rules of Professional Conduct. As Hazard & Hodes explain:
In reality, many situations arise in which a lawyer’s communications on behalf of a client cannot avoid addressing conduct by another party that is both criminal and tortious. . . . An example is where a lawyer for a financial corporation must deal with an employee who has been discovered in embezzlement. . . . In these circumstances it is counterproductive to prohibit the lawyer from discussing with the employee, or the employee’s counsel, the possibilities [of having the employee pay back the money without the adverse publicity that a criminal trial would bring].8
Such threats, however, are subject to limitations on the manner with which an advocate may proceed.
¶9 Under the current rules, as with the old, behavior that is “extortionate” is impermissible,9 because extortion is a “crime that reflects adversely on a lawyer’s honesty.”10 Whether lawyer conduct is extortionate and qualifies as an ethical violation is to be determined by the facts on a case-by-case basis.11
¶10 For example, a 1993 New Hampshire case involved a lawyer being disciplined for such improper behavior. In that case, when a plaintiff’s civil rights lawyer publicly maligned city officials and threatened them with serious criminal charges, his behavior was found to be “decidedly intimidating” and “beyond the parameters of zealous advocacy.”12 An ethical violation also occurred when a plaintiff’s lawyer, on the eve of trial, sent a letter to defendant’s lawyer threatening to send the prosecutor’s office certain documents that could incriminate the defendant, her sister and other members of her family, unless the plaintiff was immediately paid for rent due.13
¶11 The possible criminal action must, moreover, be related to the current civil matter.14 This helps insure that a lawyer’s conduct does not compound another crime. The relatedness requirement also ensures that permissible negotiation will be focused on the merits of the civil litigation and that parties will not become distracted by unconnected matters.
¶12 The use of threats also implicates Utah Rules of Professional Conduct 3.1, 4.1, 4.4 and 8.4. A lawyer must conform to these rules when using the possibility of criminal prosecution as leverage. Rule 3.1, for example, prohibits a lawyer from asserting claims in court that are not meritorious. Rule 4.1 requires lawyers to be truthful in dealing with others on a client’s behalf, forbidding a lawyer from “knowingly” making a “false statement of material fact or law to a third person.” Accordingly, a lawyer violates Rule 4.1 if he threatens criminal prosecution where he knows the facts do not support such charges. Further, Rule 4.4 says, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Thus, an off-hand threat without any informed opinion that criminal charges are well-founded may violate Rule 4.4.
¶13 A lawyer who threatens criminal proceedings must be sure that both the present civil suit and the threat of criminal action are well-founded. The lawyer, therefore, can only threaten criminal prosecution in the good-faith belief that such prosecution may be warranted by the law and facts. While a lawyer in a civil action may not use the criminal justice system to make frivolous, patently untruthful or otherwise unjustified threats against an opposing witness, the threat of criminal charges that are warranted would not violate these rules.
¶14 Various provisions of Rule 8.4 also affect the permissibility of threats of criminal prosecution. A lawyer’s failure to report criminal wrongdoing may be unethical under Rule 8.4(b) if it facilitates another crime. More generally, under section (c) of Rule 8.4, it is professional misconduct for a lawyer to “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Additionally, section (d) of the rule prohibits a lawyer from behaving in a manner that is “prejudicial to the administration of justice,” and section (e) says that a lawyer may not “state or imply an ability to influence improperly a government . . . official.” These provisions, also, prohibit the lawyer from dishonestly stating that another has committed a crime. Similarly, a lawyer is prohibited from suggesting that he can ensure that the prosecution or the court will act in a particular way if criminal charges are in fact considered.
¶15 Finally, although in certain circumstances it is ethically permissible for a lawyer to discuss both the civil and criminal implications of certain matters (e.g., embezzlement), this does not give a lawyer unfettered license to threaten parties or witnesses with criminal prosecution. In suggesting the possibility of criminal prosecution, a lawyer needs to be very careful not to violate ethical standards set forth in Rules 3.1, 4.1, 4.4 and 8.4, that the comments are not subject to being misinterpreted as attempted extortion, and that whatever is said about the possibility of criminal prosecution is directly related to the pending civil matter.
¶16 Conclusion. We adopt the position of a number of other states’ ethics committees15 and conclude that, in the course of representing a client in a civil matter, it is not per se unethical for a lawyer to threaten that the client may pursue criminal charges against an adverse party where the civil and criminal matters are related. However, a lawyer should use these tactics with a watchful eye on whether their use constitutes “extortion” under Utah Law, whether the lawyer reasonably believes that such charges are warranted by the law and the facts, and whether they involve “abusive treatment” of a witness.
Footnotes
1. The Model Code of Professional Responsibility governed Utah attorneys’ professional behavior until January 1988, when the Utah Supreme Court adopted a version of the ABA’s Model Rules of Professional Conduct.
2. C.W. WOLFRAM, MODERN LEGAL ETHICS § 13.5.5, at 718, citing ABA Model Rule 8.4, legal background note (Proposed Final Draft, May 30, 1981) (1986) (hereinafter “Wolfram”).
3. G.C. HAZARD & W.W. HODES, THE LAW OF LAWYERING § 40.4, at 40-7 (2003) (hereinafter, “Hazard & Hodes”).
4. Utah Rules of Professional Conduct 4.4 (2003).
5. Id. Rules 8.4(c) and (d).
6. See also ABA/BNA, Lawyers’ Manual on Professional Conduct § 1001:117 (1984).
7. The situation is somewhat different, however, when it involves threats against a party’s lawyer. Rule 8.3 imposes an affirmative duty of reporting when a lawyer has knowledge of another lawyer’s violation of the Rules of Professional Conduct “that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness.”
8. Hazard & Hodes § 40.4, at 40-7 to 40-8 (2003). See Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992), permitting negotiations regarding embezzlement as described above.
9. See id. and Wolfram, supra note 1.
10. Utah Rules of Professional Conduct 8.4(b).
11. Utah Code Ann. § 76-6-406(2) defines “theft by extortion.” Our opinion here is limited to the ethical implications of a lawyer’s conduct. It is not our purview to render legal opinions about whether specific conduct may or may not cause a prosecutor to conclude that the conduct constitutes the crime of extortion under Utah law.
12. In re Robertson’s Case, 626 A.2d 397, 400 (N.H. 1993).
13. In re Office of Disciplinary Counsel v. King, 617 N.E.2d 676 (Ohio 1993).
14. See Kate A. Toomey, Practice Pointer: The Rule Against Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter. UTAH BAR J., Dec. 2002, at 12.
15. For example, in Opinion No. 1995-2, www.dsba.org/ethics95-2.pdf, the Delaware State Bar Commission on Professional Ethics held that a lawyer may threaten criminal charges to gain relief for a client in the administration of an estate matter. The charges must be related and be warranted by law and facts. Opinion 97-2 (1997) of the Ethics Commission of Alaska Bar Association, www.alaskabar. org/index.cfm?ID=4870, holds similarly. The West Virginia Committee on Legal Ethics found that a lawyer’s threat to press criminal charges against his client’s former employee unless he made restitution of embezzled funds was a legitimate negotiating technique. Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992).

Ethics Advisory Opinion No. 96-01

(Approved April 26, 1996)
Issue:
May a lawyer representing a defendant in multiple lawsuits asserting similar claims initiate and conduct ex parte communications with former plaintiffs who have settled their claims?

Opinion: Yes, but only if the settling plaintiffs are not represented by counsel and only after appropriate disclosures have been made by the lawyer to the settling plaintiffs.
Facts: A lawyer’s corporate client has been and is a defendant in multiple civil lawsuits. Certain lawsuits have been settled and others are pending. Most of the current lawsuits were filed by the same plaintiffs’ lawyers who represented the individuals whose claims have been settled.1
The lawyer’s client believes that random audits of the records of current claimants reveal a lack of basis for many of the claims asserted. The client desires to bring an action against the claimant lawyers who, in the client’s view, have asserted meritless current claims.
The client has asked the lawyer to interview some of the individuals who brought settled claims that the client believes were supported by false or questionable evidence. The objective of this investigation is to acquire evidence, if any, that the claimant lawyers knowingly recruited clients and deliberately submitted on behalf of those clients claims that were supported by fabricated evidence.
The client wants the lawyer to ask the settling plaintiffs to disclose what their lawyers told them about bringing the settled claims. The proposed communications with the settling plaintiffs would be initiated by the lawyer for the corporate client. The lawyer would not inform counsel who represented settling plaintiffs of these communications.
The client has advised the lawyer that it has no intention to seek redress from any of the individuals who have settled their claims.2Times to appeal or reopen have generally expired.
Analysis: The Utah Rules of Professional Conduct contain two basic rules regarding contact with persons who are not the lawyer’s client. The first is found in Rule 4.2, which forbids contact with represented parties, and the second is found in Rules 4.3 and 4.4, which govern contact with unrepresented parties and third persons.
Rule 4.2
The relevant portion of Rule 4.2 of the Utah Rules of Professional Conduct states:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.3
Discussion of the last phrase of this Rule is quickly concluded: The corporation’s lawyer does not have consent (and indeed wants to initiate the conversation without notifying plaintiffs’ counsel) and does not propose to obtain a court order authorizing the communication.
Analysis of the first phrase of the Rule is more difficult and involves a discussion of whether the settling plaintiffs are “represented by another lawyer in the matter.” The issue is fact-specific and the burden of determining the person’s represented status is on the contacting lawyer. Under Utah law, in the absence of “disturbing events or special arrangement,” a lawyer’s employment comes to an end and the attorney-client relationship is terminated with the completion of the specific task for which the lawyer was employed.4Utah courts generally follow the common law rule that the employment of the defendant’s lawyer terminates upon entry of judgment, while the employment of the plaintiff’s lawyer terminates upon satisfaction of judgment.
In our situation, the question is whether the relationship between certain plaintiffs and their lawyer has terminated. We assume that final judgment has been entered on the settlement offered by defendant and accepted by plaintiff. The corporation’s lawyer, who desires to question those plaintiffs, must determine whether the judgment has been satisfied and whether there are other special circumstances that might rebut the presumption that the attorney-client relationship has thus terminated.5
If the settling plaintiffs are still represented by counsel, or if the corporation’s lawyer cannot confirm that the relationship between the settling plaintiffs and their counsel has terminated, Rule 4.2 would prohibit the proposed communications.
Careful attention to the current relationship between the settling plaintiffs and their counsel may allow the corporation’s lawyer to contact the settling plaintiffs without violating Rule 4.2. The burden of showing compliance with Rule 4.2 is, however, on the corporation’s lawyer.
Rules 4.4 and 4.3
Compliance with Rule 4.2 does not end the inquiry. The corporation’s counsel must also follow the Utah Rules of Professional Conduct on contacting unrepresented parties and third persons.
Utah Rule of Professional Conduct 4.4 states:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
The proposed communications with settling plaintiffs raise concerns under both parts of Rule 4.4.
First, the proposed communications would not be proper if they have no substantial purpose other than to embarrass, delay, or burden a third person. The client in this case is a defendant in ongoing litigation in which the lawyers it proposes to investigate represent plaintiffs. The question of whether the proposed communication “have no substantial purpose other than to embarrass, delay, or burden” plaintiffs or their lawyers in that litigation is a question of fact that should be considered and resolved.
Second, the proposed communications could constitute a “method of obtaining evidence that violates the legal rights” of the settling plaintiffs. In particular, any attorney-client privilege is a “legal right” of the settling plaintiffs within the meaning of Rule 4.4.6
Under Utah law the privilege would not attach to communications that the client knew or should have known were made for the purpose of facilitating a fraud.7If no privilege exists, the proposed communications would not violate any legal right of the settling plaintiffs. If the privilege exists, requesting this information without appropriate disclosure is a method of obtaining evidence that would violate Rule 4.4 by violating the settling plaintiffs’ legal rights to maintain the attorney-client privilege.8
The settling plaintiffs can waive the protection of the privilege and, in fact, may do so by answering questions from the corporation’s lawyer. These settling plaintiffs are likely to be lay persons who are generally uninformed about their rights with respect to the attorney-client privilege. Waiver of the privilege in this case may subject the settling plaintiffs to civil or criminal liability for their participation in presenting false or fraudulent claims to the court.
Therefore, in order for the corporation’s lawyers to comply with Rules 4.4 and 4.39in contacting the settling plaintiffs, they must make sufficient disclosures. Based upon the Rules, ethics opinions and case law, at least the following should be discussed:
* Identify the interviewer as a lawyer.10
* Disclose who the lawyer is representing.11
* Disclose the nature of the lawyer’s representation, including the fact that the person’s former lawyer may be an adverse party.12
* Ask if the person is currently represented by counsel.13
* Clarify that the lawyer is not representing the interviewee.14
* Clarify that the interviewee is not required to answer questions or supply information and that the interviewee may have counsel present.15
* Clarify that an attorney-client privilege may protect discussions between the interviewee and the interviewee’s counsel in the settled lawsuits, and that disclosing any of the contents of such discussions could waive that privilege as to all of the contents of such discussions so that anyone could find them out.16
It is the lawyer’s burden in this case to ensure that the lawyer’s actions will not violate the Rules of Professional Conduct. Assuming the settling plaintiffs are not represented by counsel and adequate disclosures are made, the corporation’s lawyer may contact the settling plaintiffs.
Footnotes
1.Although some of the lawsuits are class actions, all of the settling plaintiffs either opted out or never were members of a class. Accordingly, this opinion does not address issues relating to members of a class currently or formerly represented by class counsel.
2.The client is willing to authorize the lawyer to execute releases of any claims it might have against the former claimants (although not against the lawyers). Disclosure of facts showing that they participated in the filing of fraudulent claims could expose the individuals to criminal prosecutions or third-party claims. The proposed release could not insulate the individuals from such claims. Accordingly, this opinion does not consider the proposed release as a factor.
3.Rule 4.2 was amended effective April 1, 1996, by the addition of two sentences dealing with ex parte contacts of government officials. The change has no effect on the analysis in this opinion.
4.Sandall v. Sandall, 193 P. 1093 (Utah 1920) (the attorney-client relationship ended with respect to the divorce, even though a relationship with the same lawyer existed with respect to criminal matters); Atkinson v. Atkinson, 490 P.2d 729 (Utah 1971) (child custody modification considered a separate employment from the original divorce/custody proceeding); Shulder v. Dickson, 243 P. 377 (Utah 1928) (appeal considered a separate employment from the original lower court matter).
5.See also ABA Formal Op. 95-396, “Communications with Represented Persons” (1995). In the context of contact with a person who is known to have been represented by counsel, the communicating lawyer should not proceed without reasonable assurance that the representation has in fact been terminated. “As a practical matter, a sensible course for the communicating lawyer would generally be to confirm whether in fact the representing lawyer has been effectively discharged.”
6.ABA Formal Op. 91-359, “Contact with Former Employee of Adverse Corporate Party” (1991). In the context of ex parte communications with former employees of an adverse corporate party, “with respect to any unrepresented former employees, of course, the potentially communicating adversary attorney must be careful not to seek to induce the former employee to violate the privilege attaching to attorney-client communications to the extent his or her communications as a former employee with his or her former employer’s counsel are protected by the privilege. . . . Such an attempt could violate Rule 4.4.”
7.See State v. Carter, 578 P.2d 1275 (Utah 1978); In re September 1975 Grand Jury Term, 532 F.2d 734 (10th Cir. 1976); Utah R. Evid. 504(d)(1).
8.Cf. Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991) (noting ABA Formal Op. 91-359); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341, 347 (D. Conn. 1991) (efforts by counsel to induce or listen to privileged communications may violate Rule 4.4); Brown v. St. Joseph County, 148 F.R.D. 246, 255 (N.D. Ind. 1993) (counsel must refrain from seeking, inducing or listening to the disclosure of any matter protected by the attorney-client privilege). Shearson Lehman concerned an attempt to contact the former employees of an opposing corporate party under circumstances where the former employees might waive the corporate party’s attorney-client privilege. Here, the settling parties themselves are the holders of any applicable privilege.
9.Rule 4.3 states:
(a) During the course of a lawyer’s representation of a client, the lawyer shall not give advice to an unrepresented person other than the advice to obtain counsel.
(b) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Because we assume for purposes of this Rule 4.4 discussion that the settling plaintiffs are no longer represented by counsel, Rule 4.3(a) would prohibit the corporation’s lawyer from providing any advice other than the advice to obtain counsel. The ABA notes that the offer of an opinion on legal issues in support of a position, where the opinion is not proffered as advice to the unrepresented person, does not violate Rule 4.3(a). ABA Informal Op. 1502 (1983).
10.Rules 4.3 and 4.1; Shearson Lehman, 139 F.R.D. at 418 (lawyer to make clear the nature of his role).
11.Rule 4.3(b); Shearson Lehman, 139 F.R.D. at 418; University Patents v. Kligman, 737 F. Supp. 325 (E.D. Pa. 1990); Siguel v. Trustees of Tufts College, 1990 WL 29199 (D. Mass. 1990); Lizotte v. NYC Health & Hosp. Corp., 1990 WL 267421 (S.D.N.Y. 1990).
12.Rules 4.4, 4.3, and 4.1; Shearson Lehman, 139 F.R.D. at 418 (lawyer to identify client and fact that interviewee’s former employer is an adverse party); University Patents, 737 F. Supp. at 328; Tufts College, 1990 WL 29199, *7.
13.Rule 4.2; Upjohn v. Aetna Cas. and Sur., 768 F. Supp. 1186, 1215 (W.D. Mich. 1990). Of course, once a settling plaintiff seeks independent legal counsel for advice, the corporation’s lawyer is prevented by Rule 4.2 from contacting the settling plaintiff directly.
14.Rule 4.3(b).
15.In re Domestic Air Transport Antitrust Litigation, 141 F.R.D. 556, 562 (N.D. Ga. 1992); University Patents, 737 F.Supp. at 328; Tufts College, 1990 WL 29199, *7; Lizotte, 1990 WL 267421, *5.
16.Rules 4.4 and 4.3.
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