May a Missouri lawyer threaten criminal prosecution or a disciplinary complaint to obtain civil settlement concessions?

Plain-English summary

A criminal threat avoids Rule 4-8.4(d) only if the lawyer actually intends referral after failed settlement, the alleged crime relates to the civil action, the threat is not criminal, a nonfrivolous good-faith legal and factual basis exists, and no substantial purpose is lacking beyond embarrassment, delay, or burden. Other jurisdictions may categorically prohibit it.

If Rule 4-8.3 requires reporting opposing counsel, offering to forego the report violates Rule 4-8.4(a). A baseless complaint threat may violate Rule 4-3.1, and using discipline for settlement leverage likely violates Rule 4-4.4 or 4-8.4(d). A criminal threat also implicates Rule 4-8.4(b).

In practice

Under this opinion, criminal and disciplinary threats are not interchangeable. The former has strict factual conditions; the latter cannot trade away a mandatory report or misuse discipline as leverage.

Common questions

Q: Is every criminal-referral threat forbidden?

A: No, but every condition stated in the opinion must be satisfied.

Q: May a required disciplinary report be waived for settlement?

A: No.

Q: Does another jurisdiction's rule matter?

A: Yes. Rule 4-8.5 may expose the conduct to a jurisdiction that categorically prohibits such threats.

Background and rules framework

Rules 4-3.1, 4-4.1, and 4-4.4 govern basis, truthfulness, and purpose. Rules 4-8.3 through 4-8.5 govern reporting, misconduct, and choice of disciplinary rules.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-3.1, 4-4.1, 4-4.4(a), 4-8.3, 4-8.4(a), 4-8.4(b), 4-8.4(d), and 4-8.5

Other opinions cited:

• Missouri Informal Opinions 990042 and 20010149

See also

• Connecticut Informal Op. 15-01: Settlement and Bar Reporting
• Michigan Ethics Op. RI-88: Reporting and Grievance Settlement

Source

• Landing page: Missouri Informal Opinion 2019-02

Original opinion text

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

Attorney represents Employer in the defense of a civil employment matter related to the employment and subsequent discharge of Plaintiff. Employer believes Plaintiff engaged in criminal conduct during employment. Based on information Attorney has learned during discovery, Attorney has reason to believe evidence of Plaintiff’s criminal conduct during employment, which was in the possession of Plaintiff’s counsel, has been destroyed.

Question 1: Is it permissible for Attorney to inform Plaintiff’s counsel that unless Plaintiff dismisses the civil matter or enters into a settlement as proposed by Employer, Attorney will refer Plaintiff’s employment-related conduct to the prosecutor for possible criminal charges?

Answer 1: Attorney’s threat to refer the employment-related conduct of Plaintiff for criminal prosecution would constitute conduct prejudicial to the administration of justice in violation of Rule 4–8.4(d) unless Attorney has actual intent to refer the matter for prosecution if the matter is not dismissed or settled (see Rule 4–4.1); the conduct underlying the alleged criminal offense is related to the civil action and the use of the threat does not constitute a crime (see Rule 4–8.4(b)); Attorney has a non-frivolous, good faith belief based in law and fact that the employment-related conduct of Plaintiff was unlawful (see Rule 4–3.1); and Attorney’s use of the threat would not lack a substantial purpose other than to embarrass, delay, or burden the Plaintiff or another person (see Rule 4–4.4(a)). See also Informal Opinions 990042 and 20010149. Because some jurisdictions consider the use of a threat to file criminal charges to gain leverage in civil litigation to be a violation of the Rules of Professional Conduct regardless of the circumstances, Attorney should use caution if the conduct could be judged by the rules of professional conduct of another jurisdiction. See Rule 4–8.5.

Question 2: In the course of settlement negotiations, may Attorney inform Plaintiff’s counsel that a lawyer’s unlawful destruction of documents with potential evidentiary value is unethical, and unless Plaintiff dismisses the lawsuit or reaches a settlement as proposed by Employer, Employer or Attorney will file a disciplinary complaint or report against Plaintiff’s counsel?

Answer 2: If Attorney has a duty under Rule 4–8.3 to report the conduct of Plaintiff’s counsel to the Office of Chief Disciplinary Counsel, any offer by Attorney to forego the complaint or report would violate Rule 4–8.4(a) as an attempt by Attorney to violate the Rules of Professional Conduct or to do so through the acts of another. Attorney’s threat may violate Rule 4–3.1 if Attorney lacks a well-founded basis for believing Plaintiff’s counsel violated the Rules of Professional Conduct. Attorney’s threat is likely to violate Rule 4–4.4, Respect for Rights of Third Persons, and/or Rule 4–8.4(d), which prohibits conduct prejudicial to the administration of justice, if threatening to file a disciplinary report or complaint in order to extract settlement concessions is likely to be a factor Plaintiff or Plaintiff’s counsel will have to consider in the representation. Finally, a threat which itself constitutes criminal conduct would violate Rule 4–8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Attorney should also be mindful of the Scope paragraph of Rule 4 at [20], which explains that the Rules are to provide guidance for lawyers and a structure for regulating conduct through discipline, but “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.”