Ezel / Ethics Opinions / NYSBA
NYSBA 2021-08-31

Can a lawyer enclose a draft complaint with a demand letter and say it will be filed if the matter is not settled by a deadline?

Short answer: Yes, in most cases. The opinion concludes that threatening to file an enclosed draft complaint by a deadline is permissible, except in unusual situations where the threat is a false statement under Rule 4.1, deceit under Rule 8.4(c), a threat of frivolous litigation under Rule 3.1, or barred by substantive law.
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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1228: A Draft Complaint Enclosed With a Demand Letter

Short answer: The opinion concludes that a lawyer may send a demand letter enclosing a draft complaint and stating it will be filed if the matter is not settled by a certain date, except in unusual circumstances where the threat would be a false statement, deceit, a threat of frivolous litigation, or barred by substantive law.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer represents a potential civil plaintiff whose earlier demand letter and follow-up calls to the defendant went unanswered. He wants to draft a complaint, send it to the defendant without filing, and set a deadline by which the defendant must settle or the suit will be filed; he would prefer to file only as a last resort because the complaint becomes public record. He asks whether enclosing the draft complaint and stating it will be filed is permissible.

The opinion begins with Rule 3.4(e), which bars threatening criminal charges to gain advantage in a civil matter; that rule reaches only criminal threats, and nothing in the Rules specifically prohibits threatening a civil suit (citing N.Y. State 772, N.Y. City 2017-3, ABA Formal Op. 94-383). The Rules do, however, prohibit falsehood and deception: Rule 4.1 (no knowing false statement of fact or law to a third person) and Rule 8.4(c) (no dishonesty, deceit, or misrepresentation), informed by ABA Formal Op. 06-439. Whether a statement is one of "fact" depends on circumstances; statements about settlement intentions or willingness to compromise are ordinarily not statements of fact (Rule 4.1 Cmt. [2]).

Focusing on the statement that the lawyer "will" file, the committee explains that if the client has authorized suit absent an acceptable response, the threat is neither false nor deceptive; only if the lawyer knows the client will never authorize suit could the threat (compounded by enclosing a complaint the client will never file) be a misrepresentation. The committee considers such situations infrequent and concludes a threat to sue by a deadline will in most cases not be a false statement. Two additional guardrails: a lawyer may not threaten suit that would be "frivolous conduct" under Rule 3.1(b) (an attempt to violate Rule 3.1(a), barred by Rule 8.4(a)), and the standards apply to the draft complaint as well as the letter. Substantive law may impose further constraints (for example, the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e(5)), which are beyond the committee's purview.

In practice

Under this opinion, enclosing a draft complaint with a demand letter and stating it will be filed by a deadline is generally permissible, because a threat to sue typically is not a statement of fact. Per the opinion, it crosses the line only in unusual cases: where the lawyer knows the client will never authorize the suit (making the threat false under Rule 4.1 or deceptive under Rule 8.4(c)), where the threatened claim or the draft complaint's assertions would be frivolous under Rule 3.1, or where substantive law (such as the FDCPA) separately bars the threat.

Common questions

Q: Can a lawyer threaten to file a lawsuit if the other side does not settle?

A: Per the opinion, yes; Rule 3.4(e) bars only threats of criminal charges, and nothing in the Rules specifically prohibits threatening a civil suit, which in most cases is not a statement of fact.

Q: Can the lawyer enclose an actual draft complaint?

A: Per the opinion, yes; enclosing a draft complaint and stating it will be filed by a deadline is permissible unless the threat is false, deceptive, or frivolous, and the draft's assertions are subject to the same Rule 4.1, 8.4(c), and 3.1 standards.

Q: When would such a threat violate the Rules?

A: Per the opinion, in unusual cases: where the lawyer knows the client will never authorize the suit (false or deceptive under Rules 4.1 and 8.4(c)), or where the threatened litigation would be frivolous under Rule 3.1.

Background and rules framework

The opinion interprets New York Rule 4.1 (truthfulness to third persons), Rule 8.4(c) (dishonesty and misrepresentation), Rule 3.1(a)-(b) (non-meritorious and frivolous claims), Rule 8.4(a) (attempt to violate a rule), and Rule 3.4(e) (threatening criminal charges). These correspond to ABA Model Rules 4.1, 8.4, 3.1, and 3.4.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 3.1(a)-(b), 3.4(e), 4.1, 8.4(a), 8.4(c)
  • ABA Model Rules 4.1, 3.1, 3.4, 8.4 (analogues)

Statutes:

  • Fair Debt Collection Practices Act, 15 U.S.C. § 1692e(5) (noted as a substantive-law constraint, not interpreted)

Other opinions cited:

  • ABA Formal Op. 06-439 (2006): truthfulness in negotiation; baseless threats
  • ABA Formal Op. 94-383 (1994); N.Y. State 772 (2003); N.Y. City 2017-3 (2017): threats in civil matters

See also

Source