Can a lawyer threaten to file a bar grievance against opposing counsel to gain an advantage in a civil case?

Plain-English summary

The committee was asked whether an attorney may threaten to file a disciplinary complaint against opposing counsel to gain an advantage in a civil matter. Despite the absence, at the time, of an express prohibition in the Rules of Professional Conduct, the committee concluded such conduct is ethically impermissible under most circumstances, working through two situations.

Where the lawyer has actual knowledge of misconduct that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness, Rule 4-8.3(a) obligates the lawyer to report it (unless the information is protected by the confidentiality rule, Rule 4-1.6, absent client consent). In that situation, failing to report, or agreeing not to file, would itself violate Rule 4-8.4(a); the committee cited The Florida Bar v. Fitzgerald for the point that an agreement not to bring an attorney's unethical conduct to the Bar's attention is unenforceable. So a lawyer obligated to report must report rather than threaten.

Even where reporting is not required, the committee explained, threatening a disciplinary action may violate several rules: Rule 4-8.4(b) (a criminal act reflecting on fitness, such as extortion), Rule 4-3.1 (filing a complaint not well founded in fact and law), Rule 4-4.1 (threatening to file without any actual intent to do so is untruthful), Rule 4-4.4 (using means with no substantial purpose other than to embarrass, delay, or burden), and Rule 4-8.4(d) (conduct prejudicial to the administration of justice). On the last point, the committee drew on Opinion 89-3, which held an attorney may not threaten criminal prosecution solely to gain civil advantage, reasoning that the disciplinary process, like the criminal process, is not meant to settle private disputes. A note records that the Florida Supreme Court has since adopted Rule 4-3.4(h), an express prohibition on this conduct.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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, after it was written, the Florida Supreme Court adopted Rule 4-3.4(h), an express prohibition against threatening a disciplinary complaint (In re: Amendments to the Rules Regulating The Florida Bar, 718 So. 2d 1179 (Fla. 1998)).

Common questions

Q: Can a lawyer threaten opposing counsel with a bar grievance to get an edge in a civil case?

A: Under this opinion, no, in most circumstances; the committee concluded such a threat is ethically impermissible, and a lawyer obligated to report misconduct must report it rather than threaten.

Q: What rules can a threat of a disciplinary complaint violate?

A: Per the opinion, depending on the facts, Rules 4-8.4(b), 4-3.1, 4-4.1, 4-4.4, and 4-8.4(d), and, where reporting is required, Rule 4-8.4(a) for failing to report.

Q: Is there now an express rule on this?

A: A note appended to the opinion records that the Florida Supreme Court later adopted Rule 4-3.4(h) expressly prohibiting the conduct.

Background and rules framework

The opinion applied the misconduct-reporting rule (Rule 4-8.3; Model Rule 8.3) and its confidentiality limit (Rule 4-1.6; Model Rule 1.6), together with Rules 4-8.4(a), (b), (d), 4-3.1, 4-4.1, and 4-4.4 (Model Rules 8.4, 3.1, 4.1, and 4.4), and drew on Opinion 89-3's treatment of threats of criminal prosecution.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.3 / Fla. Rule 4-8.3 (reporting professional misconduct)
• Model Rule 1.6 / Fla. Rule 4-1.6 (confidentiality limit on reporting)
• Model Rule 8.4 / Fla. Rule 4-8.4(a), (b), (d) (misconduct)
• Model Rule 3.1 / Fla. Rule 4-3.1 (meritorious claims)
• Model Rule 4.1 / Fla. Rule 4-4.1 (truthfulness in statements to others)
• Model Rule 4.4 / Fla. Rule 4-4.4 (respect for rights of third persons)

Cases:

• The Florida Bar v. Fitzgerald, 541 So. 2d 602 (Fla. 1989), agreement not to report unethical conduct is unenforceable
• In re: Amendments to the Rules Regulating The Florida Bar, 718 So. 2d 1179 (Fla. 1998), adoption of Rule 4-3.4(h) (per the opinion's note)

Other opinions cited:

• Fla. Ethics Op. 89-3 (threatening criminal prosecution to gain civil advantage)

See also

• FL Bar Ethics Op. 04-1: Client Perjury, Disclosure, and Withdrawal
• FL Bar Ethics Op. 12-1: Plea Waivers of Ineffective Assistance and Prosecutorial Misconduct
• FL Bar Ethics Op. 94-2: Prosecutor Advising Crime Victims of a Restitution Lien

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-94-5/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-94-5.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 94-5
April 30, 1995
Advisory ethics opinions are not binding.
Under most circumstances, it is unethical to threaten a fellow member of the bar with a grievance complaint.
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 adopted Rule 4-3.4(h). See In re: Amendments to the Rules Regulating The Florida Bar, 718 So.2d 1179 (Fla. 1998).
RPC: 4-1.6, 4-3.1, 4-4.1, 4-4.4, 4-8.3, 4-8.3(a), 4-8.4(a), 4-.84(d)
Opinion: 89-3
Case: The Florida Bar v. Fitzgerald, 541 So.2d 602 (Fla. 1989)

The Committee has been asked whether an attorney may threaten to file a disciplinary complaint against opposing counsel in order to obtain advantage in a civil matter. Despite the absence of an express prohibition in the Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar), the Committee is of the opinion that such conduct is ethically impermissible under most circumstances.

Under the "Reporting Professional Misconduct" rule, Rule 4-8.3, an attorney is obligated to report another attorney's misconduct if the attorney has actual knowledge of a misconduct that raises a substantial question as to the offending attorney's "honesty, trustworthiness, or fitness as a lawyer in other respects." Rule 4-8.3(a). An attorney, however, may not report the violation if the information is protected by the confidentiality rule, Rule 4-1.6, unless the attorney has the consent of the client. As a result, in situations where an attorney is required to report a violation, the attorney's failure to do so would constitute misconduct under Rule 4-8.4(a). Similarly, an agreement not to file a grievance complaint would violate Rule 4-8.4(a) where the filing of a complaint would otherwise be required by Rule 4-8.3(a). See The Florida Bar v. Fitzgerald, 541 So.2d 602, 605 (Fla. 1989) (client's agreement not to bring attorney's unethical conduct to attention of the Bar is unenforceable). Therefore, if an attorney is obligated to report another attorney's professional misconduct, the attorney must report it rather than threaten to do so.

Even when an attorney is not required to report the professional misconduct under Rule 4-8.3, threatening a disciplinary action may violate one or more of Rules 4-8.4(b), 4-3.1, 4-4.1, 4-4.4 and 4-8.4(d). Rule 4-8.4(b) prohibits an attorney from committing "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Therefore, an attorney is prohibited from conduct which would constitute extortion under criminal law.

Rule 4-3.1 generally prohibits an attorney from bringing a frivolous proceeding. This rule would prohibit an attorney from filing a disciplinary complaint that is not well founded in fact and in law.

Rule 4-4.1 requires an attorney to be truthful in dealing with others on a client's behalf. Therefore, an attorney who threatens to file a disciplinary complaint without any actual intent to do so would violate this rule.

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 to file a disciplinary complaint if the primary purpose of doing so was to harass or embarrass the other attorney.

Rule 4-8.4(d) provides that an attorney shall not "engage in conduct that is prejudicial to the administration of justice." In our Opinion 89-3, the Committee concluded that an attorney is prohibited from threatening criminal prosecution solely to gain advantage in a civil matter. In that opinion the Committee stated, "[t]he 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." Likewise, the disciplinary process is not intended to be used as a means of settling private disputes.

In conclusion, if an attorney is obligated to report another attorney's professional misconduct pursuant to Rule 4-8.3, then it is ethically impermissible for the attorney to threaten the other attorney with the filing of a disciplinary complaint. Even if an attorney is not obligated to report the other attorney's misconduct, threatening to file a disciplinary complaint often will violate one or more of the Rules of Professional Conduct.