In a civil dispute, can a lawyer threaten or file criminal charges, or threaten or file administrative or disciplinary charges, against the opposing party to gain leverage?

Plain-English summary

A lawyer represented a client seeking the return of funds a stockbroker allegedly took. The same conduct could support a civil conversion claim, a criminal theft complaint, and a complaint to a self-regulatory body such as the NYSE. The committee was asked which threats and filings the lawyer could make.

The committee first applies the general rules that govern any complaint. DR 7-102(A)(2) bars knowingly advancing an unwarranted claim, DR 7-102(A)(1) bars action that would serve merely to harass or maliciously injure, and DR 1-102(A)(4) and DR 7-102(A)(5) bar dishonesty and knowingly false statements. So before filing anything, the lawyer must believe the claim is warranted in law and fact and is not being made merely to harass.

The committee then turns to DR 7-105(A), which prohibits presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter. The committee reads the rule by its terms: it reaches criminal charges only, not administrative or disciplinary charges. So threatening or filing an NYSE complaint does not violate DR 7-105(A), regardless of purpose. Filing a criminal complaint with a prosecutor does not violate the rule unless the lawyer's sole purpose is to obtain the return of the disputed funds. But a letter threatening to file a criminal complaint unless the broker returns the funds does violate DR 7-105(A); the committee notes that when a lawyer threatens criminal charges unless a specified act is done, a presumption arises that the rule was violated.

The committee adds that, under New York law, threatening criminal charges to compel an act can amount to criminal coercion or extortion, subject to an affirmative defense where the person reasonably believed the charges were true and acted solely to make good the wrong. But the committee stresses that DR 7-105(A) applies regardless of whether the threatened charges are true or the demand is reasonably related to the wrong; the ethical rule is independent of whether the conduct is also unlawful.

In practice

Under the New York Code as it stood at the time, the opinion holds that the line runs between criminal charges, which DR 7-105(A) protects, and administrative or disciplinary charges, which it does not. A lawyer may file or threaten an administrative or disciplinary complaint regardless of purpose, subject to the general good-faith and honesty rules. A lawyer may file a criminal complaint, but it violates DR 7-105(A) if the sole purpose is to gain a civil advantage, and a written threat to file criminal charges unless funds are returned crosses the line. The committee separates the ethical rule from the penal-law coercion and extortion analysis, holding that DR 7-105(A) applies even where an affirmative defense would make the conduct lawful.

Common questions

Q: Can a lawyer threaten to file criminal charges to get a civil dispute resolved?

A: No. The committee concludes that a letter threatening criminal charges unless the opposing party returns funds violates DR 7-105(A), and that such a threat raises a presumption the rule was violated.

Q: Does DR 7-105(A) cover administrative or disciplinary complaints?

A: No. The committee reads the rule to reach criminal charges only. A lawyer may threaten or file an administrative or disciplinary complaint, such as an NYSE complaint, regardless of purpose, subject to the general good-faith rules.

Q: Can the lawyer file an actual criminal complaint, as opposed to threatening one?

A: Yes, unless the lawyer's sole purpose in filing is to obtain the return of the disputed funds; in that case the filing violates DR 7-105(A).

Q: Does it matter whether the threatened criminal charges are true?

A: Not for the ethics rule. The committee holds DR 7-105(A) applies regardless of whether the charges are true or the demand is reasonably related to the wrong, even where a penal-law affirmative defense would make the conduct lawful.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 7-105(A) prohibited threatening or presenting criminal charges solely to gain an advantage in a civil matter; this rule has no direct counterpart in the ABA Model Rules, which omitted the provision, though the conduct can implicate Model Rules 4.4 (no purpose but to burden a third person) and 8.4 (misconduct). DR 7-102(A)(2) bars unwarranted claims (analogous to Model Rule 3.1), DR 7-102(A)(1) bars harassing action (a facet of Model Rule 4.4), and DR 1-102(A)(4) and DR 7-102(A)(5) bar dishonesty and false statements (analogous to Model Rule 8.4). The committee's holding turns on the text of DR 7-105(A) limiting it to criminal charges.

Citations and references

Rules of Professional Conduct:

• MR 3.1 (meritorious claims); NY DR 7-102(A)(2)
• MR 4.4 (no purpose but to burden a third person); NY DR 7-102(A)(1), DR 7-105(A)
• MR 8.4 (dishonesty; misconduct); NY DR 1-102(A)(4), DR 7-102(A)(5)

Statutes:

• N.Y. Penal Law section 135.60(4): criminal coercion in the second degree
• N.Y. Penal Law section 155.05(2)(e)(iv): extortion
• N.Y. Penal Law sections 135.75 and 155.15(2): affirmative defenses where the threatened charge is reasonably believed true and the sole purpose is to remedy the wrong

See also

• NY State Bar Op. 821: Prosecutor's threat of criminal prosecution to aid a civil claim
• NY State Bar Op. 962: Paying a witness's travel expenses and legal fees
• NY State Bar Op. 1098: Prosecutor conditioning a plea on an ineffective-counsel waiver

Source

• Landing page: https://nysba.org/ethics-opinion-772/