Ezel / Ethics Opinions / NYC-BAR
NYC-BAR June 23, 2015

Can a lawyer threaten to file a disciplinary complaint against opposing counsel?

Short answer: Rule 3.4(e) does not bar it, because that rule reaches only threats of criminal charges. But the opinion concludes the threat is improper if the lawyer has a mandatory duty to report the misconduct under Rule 8.3(a), lacks a good-faith belief that a violation occurred, or makes the threat only to embarrass, harm, or extort.

Apply this to your situation

This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The committee addresses whether a New York lawyer may threaten to file a disciplinary complaint against another lawyer, treating a "threat" as a statement that the lawyer will file charges unless the other lawyer meets a particular demand. It first concludes that Rule 3.4(e), which prohibits threatening to present criminal charges solely to gain an advantage in a civil matter, does not reach threats of disciplinary charges; the rule's plain language is limited to criminal charges, and the committee declines to extend it by analogy, agreeing with NYSBA Op. 772 and disagreeing with contrary authority such as Nassau Op. 98-12 and dicta in Zubulake v. UBS Warburg.

That conclusion does not leave lawyers free to threaten with impunity. The opinion identifies a category of cases where a threat is barred: when the lawyer has a mandatory duty under Rule 8.3(a) to report misconduct (that is, the lawyer "knows" of a violation raising a substantial question as to another lawyer's honesty, trustworthiness, or fitness). In that situation, conditioning the handling of the grievance on compliance with a demand would violate Rule 8.4(a), and even making the threat is an attempt to violate the Rules. The committee notes a lawyer may still, as a courtesy, confront opposing counsel with evidence of misconduct and notify them of an intent to file, but may not invite the lawyer to bargain the grievance away.

Where the violation is only "discretionary" (the lawyer suspects but does not "know," or the conduct does not raise a substantial fitness question), the Rules do not categorically prohibit a threat, and a threat may even further the self-regulatory system, for example by prompting return of improperly withheld client funds. But several limits apply: the lawyer must have a good-faith belief that the other lawyer has violated or will violate a rule (Rule 8.4(c), 8.4(d), 8.4(h)); the lawyer may not base a threat on a false statement of fact or law (Rule 4.1, and in litigation Rule 3.1); the threat must not serve only to embarrass or harm a third person (Rule 4.4(a)); and the threat must not violate substantive law such as the prohibition on extortion (Rule 3.4(a)(6) and Rule 8.4(b)).

In practice

The opinion holds that, under the New York rule as it stood at the time, a threat to file a disciplinary complaint is not categorically prohibited by Rule 3.4(e), but is improper in defined circumstances. Per the opinion, the analysis turns first on whether the lawyer has a mandatory reporting duty under Rule 8.3(a): if so, conditioning the grievance on a demand is barred. Absent a mandatory duty, the opinion permits the threat only when the lawyer has a good-faith belief in the misconduct, the threat rests on no false statement of fact or law, it serves a substantial purpose beyond embarrassing or harming the target, and it does not amount to extortion or other illegal conduct.

Common questions

Q: Does threatening to report opposing counsel to the disciplinary committee violate Rule 3.4(e)?

A: No. The opinion concludes Rule 3.4(e) covers only threats to present criminal charges; New York's rule omits the reference to disciplinary or administrative charges that some other states include, and the committee declines to extend it by analogy.

Q: I am required to report a lawyer's misconduct. Can I instead offer to drop it if they fix the problem?

A: No. The opinion concludes that when Rule 8.3(a) makes reporting mandatory, conditioning the grievance on the lawyer's compliance with a demand violates Rule 8.4(a), and even threatening to do so is an attempt to violate the Rules. You may, however, confront the lawyer with the evidence as a courtesy before reporting.

Q: When can I permissibly threaten a disciplinary complaint?

A: Per the opinion, only for a "discretionary" grievance (you suspect but do not "know" of a violation, or it does not raise a substantial fitness question), and only if you have a good-faith belief in the misconduct, make no false statement of fact or law, and act for a substantial purpose other than embarrassing or harming the other lawyer.

Q: Could a disciplinary threat ever be a crime?

A: The opinion observes that, under certain circumstances, threatening to file a disciplinary complaint may violate New York's extortion statute or other criminal law, which would also violate Rule 3.4(a)(6) and Rule 8.4(b), (d), and (h). The committee notes it has no jurisdiction to interpret substantive criminal law and offers no view on any specific threat.

Background and rules framework

The opinion interprets New York Rule 3.4(e) (fairness to opposing party and counsel; Model Rule 3.4), the Rule 8.3(a) mandatory reporting duty (Model Rule 8.3), Rule 4.1 (truthfulness to third persons; Model Rule 4.1), Rule 4.4(a) (respect for third persons; Model Rule 4.4), Rule 3.1 (meritorious claims; Model Rule 3.1), and several subsections of Rule 8.4 (misconduct; Model Rule 8.4). It frames the reporting duty against the Rule 1.0(k) definition of "knows" and the Rule 1.6 confidentiality limits on reporting.

Citations and references

Rules of Professional Conduct:

  • Model Rule 3.4(e) / NY RPC 3.4(e) (threatening criminal charges to gain civil advantage)
  • Model Rule 8.3(a) / NY RPC 8.3(a) (mandatory reporting of misconduct)
  • Model Rule 4.1 / NY RPC 4.1 (false statements to third persons)
  • Model Rule 4.4(a) / NY RPC 4.4(a) (means with no purpose but to embarrass or harm)
  • Model Rule 8.4 / NY RPC 8.4(a), (b), (c), (d), (h) (misconduct)

Statutes:

  • N.Y. Penal Law § 155.05(1)(e) (extortion), referenced as an example only

Cases:

  • Zubulake v. UBS Warburg LLC, 230 F.R.D. 290 (S.D.N.Y. 2003), extending the no-contact analogy to regulatory-enforcement threats (opinion declines to follow)

Other opinions cited:

  • NYSBA Ethics Op. 772 (2003): predecessor DR 7-105(A) does not reach disciplinary or administrative charges
  • NYSBA Ethics Op. 635 (1992): good-faith basis required to report misconduct
  • Nassau County Bar Op. 98-12 (1998): contrary view that DR 7-105 reached grievance threats

See also

Source

Get today's answer for your situation

You just read a 2015 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.