Can opposing counsel threaten a disciplinary complaint for leverage, and can a lawyer contact a city's officials directly while the city's attorney represents it?

Plain-English summary

Defense lawyer D defended an ordinance-violation prosecution brought by lawyer P over alleged zoning violations. While the prosecution was pending, D filed a zoning-review application and communicated directly with municipal zoning and building officials about the property. P threatened to file an ARDC complaint against D for violating Rule 4.2 and proposed attaching the complaint letter as an exhibit to a motion to enjoin D's contacts. The questions were whether attaching the ARDC complaint to a motion violated the confidentiality of disciplinary investigations under Supreme Court Rule 766, and whether D could contact city officials about the pending case or the related zoning matter without the city attorney's consent.

On the first question, the opinion noted that interpreting the Supreme Court Rules governing the ARDC was generally outside the committee's scope, but it concluded that the broader conduct implicated Rule 1.2(e), which bars threatening criminal charges or disciplinary action to gain an advantage in a civil matter. Although the case was an ordinance violation rather than a civil case, the opinion concluded that P's threat to file and attach an ARDC complaint to gain advantage in the pending prosecution violated the spirit, if not the letter, of Rule 1.2(e). It added that P could still file a genuine complaint and could advise the municipal officials not to communicate directly with D.

On the second question, the opinion concluded that, absent the city attorney's consent, Rule 4.2 prohibited D from directly communicating with represented city officials about the ordinance violation. Drawing on Opinion No. 92-3, it recognized that a client may sometimes speak with public officials as communication "otherwise authorized by law," because public servants are accountable to the public, but that the lawyer should not assist the client in directly communicating with represented government officials who are litigation parties about the litigation. It treated assisting the client's petitioning of officials on the zoning review as a separate matter that, as a general rule, does not violate the Rules.

Currency note

This opinion was issued in 1996, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.2(e), 4.2 with its Comment [5], and 8.4(g)), while noting 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: Does the bar on threatening disciplinary action apply outside ordinary civil cases?

A: Yes. The opinion concluded that the intent of Rule 1.2(e) is to condemn threats used to gain an unfair advantage, so it reached a threat made to gain advantage in a quasi-criminal ordinance-violation prosecution.

Q: Can a lawyer contact a city's officials directly about the pending case?

A: No, absent consent. The opinion concluded that Rule 4.2 barred direct communication with represented city officials about the ordinance violation without the city attorney's consent.

Q: Can the lawyer still help the client petition officials on the related zoning review?

A: Generally yes. The opinion treated assisting the client in petitioning public officials on the zoning matter as separate, and concluded such contact about a matter in dispute does not, as a general rule, violate the Rules.

Background and rules framework

The opinion interpreted Rule 1.2(e) (threatening criminal charges or disciplinary action to gain advantage in a civil matter) and Rule 4.2 (communication with a represented person; Model Rule 4.2), reading the Rule 4.2 "otherwise authorized by law" exception in light of the public accountability of government officials. It noted that interpretation of Supreme Court Rule 766 on the confidentiality of ARDC investigations was outside its usual scope.

Citations and references

Rules of Professional Conduct:

• Illinois Rule 1.2(e) (threatening disciplinary or criminal action for advantage)
• Model Rule 4.2 (communication with a represented person) / Illinois Rule 4.2
• Illinois Rule 8.4 (misconduct; affirmation referencing 8.4(g))

Other opinions cited:

• ISBA Advisory Opinions Nos. 91-19, 91-29, and 92-3

See also

• ISBA Ethics Op. 13-09: Direct Communication With Government Representatives
• ISBA Ethics Op. 96-09: Discharged Lawyer Contacting a Represented Former Client
• ISBA Ethics Op. 23-04: Pro Se Lawyer Contacting a Represented Opposing Party

Source

• Landing page: https://www.isba.org/ethics/opinions/9512