Can a lawyer threaten to bring criminal charges against the opposing party to gain leverage in a civil case, or agree to drop such charges as part of a civil settlement?

Plain-English summary

The committee revisited whether a lawyer may use or threaten criminal prosecution to gain an advantage in a private civil matter. Its earlier Informal Opinions 1427 and 1484 had turned on DR 7-105(A) of the Model Code, which expressly prohibited threatening criminal charges "solely to obtain an advantage in a civil matter." The committee emphasized that this provision "has no counterpart in the Model Rules," and that its omission was deliberate: the drafters concluded that extortionate, fraudulent, or otherwise abusive threats were already covered by more general rules, making a specific prohibition redundant or overbroad.

Working from that premise, the committee held that threatening criminal charges to advance a civil claim is permissible within limits, and identified the rules that set those limits. Rule 8.4(b) is violated if the lawyer's conduct amounts to extortion or compounding a crime under applicable criminal law; the opinion noted the Model Penal Code does not criminalize threats where the property sought is honestly claimed as restitution for the harm the accusation relates to. Rule 4.4 is violated if a threat has no substantial purpose other than to embarrass, delay, or burden a third person. Rule 4.1 is violated if the lawyer threatens prosecution with no actual intent to pursue it. Rule 3.1 is violated if the threatened charges, or the underlying civil claim, are not well founded in law and fact. From these, the committee derived the three conditions in its holding: relatedness, a well-founded belief in both the civil and criminal matters, and no improper influence over the criminal process.

The committee added that agreeing to refrain from pressing criminal charges as part of a civil settlement is not expressly prohibited, but a lawyer must avoid the crime of compounding (subject to the restitution affirmative defense), and such agreements may have separate civil or criminal consequences and may be unenforceable. It acknowledged that some jurisdictions adopting the Model Rules kept DR 7-105(A)-style language or interpreted the Rules as retaining the prohibition, and stated that "[t]o the extent that these opinions purport to interpret the Model Rules, in this Committee's view they are incorrect," citing the West Virginia Supreme Court's Printz decision as support. The opinion expressly did not affect any duty to report misconduct under Rule 8.3(a), and was limited to negotiations between nongovernmental parties.

Currency note

This opinion was issued in 1992, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. State rules on threatening criminal prosecution vary widely, and many jurisdictions retain a DR 7-105(A)-style prohibition that this opinion reads the Model Rules as omitting. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Do the Model Rules ban threatening criminal charges to win a civil case?

A: No. The opinion concluded the Model Rules deliberately dropped the former DR 7-105(A) prohibition, so such a threat is not categorically barred, though it remains subject to general rules.

Q: What conditions must be met for the threat to be permissible?

A: The committee held the criminal matter must be related to the civil claim, the lawyer must reasonably believe both the civil claim and the criminal charges are well founded in law and fact, and the lawyer must not attempt to exert or suggest improper influence over the criminal process.

Q: Can a lawyer agree to drop criminal charges as part of a civil settlement?

A: The opinion concluded the Model Rules do not prohibit such an agreement, but the lawyer must avoid the crime of compounding and be aware the agreement may carry other legal consequences or be unenforceable.

Q: Does every state follow this reading?

A: No. The committee acknowledged that some jurisdictions retained DR 7-105(A)-style language or read the Rules as keeping the prohibition, and said those interpretations of the Model Rules are, in its view, incorrect.

Background and rules framework

The opinion interpreted the Model Rules against the deliberate omission of the Model Code's DR 7-105(A). It identified Rule 8.4(b) and (d)-(e) (criminal acts reflecting on fitness, conduct prejudicial to justice, implying improper influence), Rule 4.4 (respect for third persons; no-substantial-purpose harassment), Rule 4.1 (truthfulness), and Rule 3.1 (meritorious claims and contentions) as the provisions that cabin the use of prosecution threats, and derived its relatedness, good-faith, and no-improper-influence conditions from them. Because the ABA interprets the Model Rules directly, there is no state-rule analogue; the opinion notes states vary in retaining DR 7-105(A).

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; subsections (b), (d), (e))
• MR 4.4 (respect for rights of third persons)
• MR 4.1 (truthfulness in statements to others)
• MR 3.1 (meritorious claims and contentions)

Cases:

• Committee on Legal Ethics of the West Virginia State Bar v. Printz, 416 S.E.2d 720 (W. Va. 1992), the Model Rules deliberately omit DR 7-105(A)

Other opinions cited:

• ABA Informal Op. 1427 (1978) and Informal Op. 1484 (1981): earlier analyses under DR 7-105(A) of the Model Code

See also

• ABA Formal Op. 06-439: Truthfulness in negotiation and caucused mediation
• ABA Formal Op. 92-362: Contact with opposing party regarding a settlement offer

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 92-363.pdf