Is it improper to threaten criminal prosecution to gain leverage in a civil case, and must opposing counsel report it to the disciplinary commission?

Plain-English summary

Attorney A represented the husband in a dissolution-of-marriage action. During settlement negotiations, Attorney B, representing the wife, wrote in a letter that his client "was inclined, and still is inclined, to unveil this sham to the bank and ask that [A's client] be prosecuted," referring to an allegation that the husband forged the wife's signature on a mortgage. Attorney A asked whether that statement violated the Rules, and whether any violation triggered a duty to report Attorney B to the ARDC under In re Himmel.

The opinion concluded that Rule 1.2(e), which states that a lawyer "shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter," was violated. The committee concluded that Attorney B's suggestion that A's client might be criminally prosecuted was an attempt to gain an advantage rather than a statement of objective fact, and so violated Rule 1.2(e).

On the reporting question, the opinion concluded that Attorney A had no obligation to report the statement under In re Himmel. Mandatory reporting under Rule 8.3(a) is limited to acts constituting illegal conduct or conduct involving dishonesty, fraud, or misrepresentation under Rule 8.4(a)(3) and (4). Attorney B's Rule 1.2(e) violation is misconduct under Rule 8.4(a)(1) (violating the Rules), which is not subject to mandatory reporting under Rule 8.3(a).

Currency note

This opinion was issued in 1992, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (pointing to Rule 8.4(b), (c), and (g) and ISBA Opinion 90-29), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Is it improper to threaten criminal prosecution to gain an advantage in a civil case?

A: The opinion concluded it violates Rule 1.2(e), which bars a lawyer from presenting or threatening to present criminal charges to obtain an advantage in a civil matter.

Q: Was the wife's lawyer's statement a permissible statement of fact?

A: The opinion concluded it was not; the suggestion that the husband might be prosecuted was an attempt to gain an advantage rather than a statement of objective fact, and so violated Rule 1.2(e).

Q: Must opposing counsel report the threat to the ARDC?

A: No. The opinion concluded mandatory reporting under Rule 8.3(a) reaches only conduct under Rule 8.4(a)(3)-(4) (criminality or dishonesty); a Rule 1.2(e) violation is Rule 8.4(a)(1) misconduct and is not subject to mandatory reporting.

Background and rules framework

The opinion interpreted Rule 1.2(e) (the bar on threatening criminal charges to gain a civil advantage) and Rule 8.3(a) (mandatory reporting, limited to Rule 8.4(a)(3)-(4) conduct), distinguishing a Rule 8.4(a)(1) violation from the categories that trigger a duty to report, against the backdrop of In re Himmel (Model Rules 1.2, 8.3, 8.4).

Citations and references

Rules of Professional Conduct:

• Illinois Rule 1.2(e) (threatening criminal charges to obtain a civil advantage; Model Rule 1.2)
• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3(a)
• Model Rule 8.4 (misconduct) / Illinois Rule 8.4(a)(1), (a)(3)-(4)

Cases:

• In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988), scope of the duty to report another lawyer's misconduct

Other opinions cited:

• ISBA Opinion No. 90-36

See also

• ISBA Ethics Op. 90-08: Reporting a Client Lawyer
• ISBA Ethics Op. 91-23: Reporting a Self-Dealing Will

Source

• Landing page: https://www.isba.org/ethics/opinions/9129