Can a lawyer threaten criminal prosecution to gain an advantage in a civil case?

Plain-English summary

The committee was asked whether a lawyer is subject to discipline for threatening criminal prosecution in a matter related to a civil action. Former DR 7-105 of the Code had expressly barred presenting, participating in presenting, or threatening criminal charges solely to gain an advantage in a civil matter, but the Rules of Professional Conduct that superseded the Code on January 1, 1987 contained no express counterpart. The committee concluded that the Rules nonetheless prohibit the conduct, pointing to several rules.

Rule 4-3.1 prohibits bringing a frivolous proceeding, so it would bar filing or attempting to file groundless criminal charges. Rule 4-4.4 bars using means with no substantial purpose other than to embarrass, delay, or burden a third person, so it would bar threatening or filing criminal charges primarily to harass or embarrass. Rule 4-8.4(c) bars deceit or misrepresentation, so it would bar misleading an adverse party into believing the attorney can control the filing or dropping of charges. Rule 4-8.4(d) bars conduct prejudicial to the administration of justice, so it would bar using or threatening the criminal justice system solely to gain a civil advantage.

The committee concluded it would be improper to bring, participate in bringing, or threaten criminal charges solely to obtain a civil advantage or where the primary purpose is harassment, while recognizing that not every mention of possible criminal consequences is improper. It distinguished a permissible notice carefully tailored to a legitimate purpose, such as the statutory worthless-check notice (Opinion 85-3), from an improper threat, and noted that the attorney's motivation and intent are major factors, to be assessed case by case in light of authority construing former DR 7-105.

Currency note

This opinion was issued in 1989, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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. A note appended to the opinion records that, when it was written, there was no express prohibition against such conduct in the Rules, and that the Supreme Court has since re-enacted the specific prohibition in Rule 4-3.4(g). See In re: Amendments to the Rules Regulating The Florida Bar, 718 So. 2d 1179 (Fla. 1998).

Common questions

Q: Can a lawyer threaten criminal charges to settle a civil dispute?

A: The opinion concluded that a lawyer may not bring, participate in bringing, or threaten criminal charges solely to obtain an advantage in a civil matter or where the primary purpose is harassment.

Q: Was there a specific rule banning this at the time?

A: No. The opinion noted that the Rules then had no express counterpart to former DR 7-105, but concluded that Rules 4-3.1, 4-4.4, 4-8.4(c), and 4-8.4(d) together prohibit the conduct. The note records that Rule 4-3.4(g) later re-enacted the express prohibition.

Q: Is every mention of possible criminal consequences improper?

A: No. The opinion stated that a notice carefully tailored to a legitimate purpose, such as the statutory worthless-check notice, is permissible, and that the analysis turns on the attorney's motivation and intent, case by case.

Background and rules framework

The opinion interprets Rule 4-3.1 (Model Rule 3.1) on meritorious claims, Rule 4-4.4 (Model Rule 4.4) on respect for the rights of third persons, and Rules 4-8.4(c) and 4-8.4(d) (Model Rule 8.4) on dishonesty and conduct prejudicial to the administration of justice, against the backdrop of former DR 7-105 and EC 7-21. The appended note records the later re-enactment of the express prohibition as Rule 4-3.4(g).

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-3.1 / Model Rule 3.1 (meritorious claims)
• Fla. Rule 4-4.4 / Model Rule 4.4 (respect for rights of third persons)
• Fla. Rules 4-8.4(c), 4-8.4(d) / Model Rule 8.4 (dishonesty; administration of justice)
• Fla. Rule 4-3.4(g) (re-enacted prohibition, per the note); former Code DR 7-105, EC 7-21

Cases:

• In re: Amendments to the Rules Regulating The Florida Bar, 718 So. 2d 1179 (Fla. 1998)

Other opinions cited:

• Fla. Ethics Op. 85-3

See also

• FL Bar Ethics Op. 94-5: Threatening a Grievance Complaint Against Opposing Counsel
• FL Bar Ethics Op. 89-6: Statutory Notice to a Represented Adverse Party

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-89-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-89-3-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 89-3
March 1, 1989
Advisory ethics opinions are not binding.

An attorney may not threaten criminal prosecution solely to gain advantage in a civil matter or for purposes of harassment.

Note: When this opinion was written, there was no express prohibition against such conduct in the Rules of Professional Conduct. The Supreme Court has since re-enacted the specific prohibition in Rule 4-3.4(g). See In re: Amendments to the Rules Regulating The Florida Bar, 718 So.2d 1179 (Fla. 1998).

RPC: 4-3.1; 4-4.4; 4-8.4(c); 4-8.4(d)
CPR: EC 7-21; DR 7-105
Opinion: 85-3

A member of The Florida Bar presents this question:

Is a member of The Florida Bar subject to disciplinary action for threatening criminal prosecution in a matter related to a civil action?

DR 7-105 of the former Code of Professional Responsibility provided:

A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.

The Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar), which superseded the former Code effective January 1, 1987, do not contain an express counterpart to DR 7-105. Nevertheless, it is apparent that the Rules of Professional Conduct do prohibit the type of conduct that was specifically proscribed by DR 7-105. Several rules are particularly relevant to the topic of threatening criminal prosecution.

Rule 4-3.1 generally prohibits an attorney from bringing a frivolous proceeding. This rule would prohibit an attorney from filing, or attempting to file, criminal charges that were groundless.

Rule 4-4.4 states that in representing a client an attorney "shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person." This rule would therefore prohibit an attorney from threatening or filing criminal charges if the primary purpose of doing so was to harass or embarrass someone.

Rule 4-8.4(c) prohibits an attorney from engaging in conduct involving deceit or misrepresentation. An attorney who deliberately misleads an adverse party into believing that the attorney can control the filing or dropping of criminal charges would violate this rule.

Rule 4-8.4(d) provides that an attorney shall not "engage in conduct that is prejudicial to the administration of justice." This rule would prohibit an attorney from using, attempting to use, or threatening to use the criminal justice system solely to gain an advantage in a civil matter. The criminal process was not intended to be used as a means of settling private disputes and is undermined when it is misused in such a manner. Additionally, the civil process was designed for the resolution of private claims and the improper threat of criminal charges might deter someone from pursuing his or her legal rights. See EC 7-21, former Code of Professional Responsibility.

In view of the rules discussed above, the Committee concludes that it would be improper for an attorney to bring, participate in bringing, or threaten to bring criminal charges against someone solely to obtain an advantage in a civil matter or if the primary purpose of such action is harassment. This conclusion recognizes that not every mention of possible criminal consequences is improper. It is important to distinguish between a permissible notice that is carefully tailored to serve a legitimate purpose and an improper express or implied threat to bring criminal charges if the recipient does not comply with certain demands related to a civil claim. An example of a permissible communication is the notice of worthless check which is prescribed by statute. See Florida Ethics Opinion 85-3. The motivation and intent of the attorney involved obviously will be a major factor in determining whether his or her actions are ethically improper. The Committee believes that such determinations necessarily must be made on a case-by-case basis, in light of case law and ethics opinions construing former DR 7-105.