Is it an improper threat for a lawyer to warn opposing counsel that continued ex parte contact with his client could lead to criminal charges?

Plain-English summary

In multi-party construction litigation, the owner's lawyer (also counsel of record for Subcontractor F after a subrogation) learned that the contractor had directly contacted Subcontractor F to discuss settling a suit before service of process. The lawyer wrote opposing counsel that if the contacts continued or amounted to an attempt to bribe or influence F, he would take the matter up with the judge and the Commonwealth's Attorney, and demanded all communications go through him. The committee was asked whether that warning was an improper threat of criminal charges to gain a civil advantage.

The committee applies its two-part Rule 3.4(h) test: is the communication a threat, and if so, was it made solely to obtain an advantage in a civil matter. The first prong is clearly met: the letter is a definite threat of criminal prosecution. On the second prong, the committee finds the letter, unlike a usual settlement-by-threat demand, seeks to stop the opposing party from contacting the lawyer's client directly. Drawing on LEO 1063 (a letter telling a "stalker" to stop or face criminal and civil action was proper because it aimed to stop the conduct, not gain civil advantage), the committee concludes that on its face this letter aims to stop further contact, so it is not solely for civil advantage and does not by itself violate Rule 3.4(h). The conclusion rests on the absence of any further information about the lawyer's motive.

The committee adds a Rule 4.2 point: while Comment 1 lets parties communicate directly with each other, that comment must be read with Rule 8.4(a)'s bar on violating a rule through the acts of another. So a lawyer may not evade Rule 4.2 by directing his client to contact a represented opposing party. The subcontractor's lawyer appeared concerned the contractor's lawyer had directed the contact, which is the kind of further contact the letter sought to prevent.

Currency note

This opinion was issued in 2001. Virginia's Rules 3.4, 4.2, and 8.4 may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, a threat of criminal referral is judged by whether it is a threat and whether it was made solely for civil advantage; a letter aimed at stopping an opposing party's direct contact with a represented client is not solely for civil advantage and so does not by itself violate Rule 3.4(h). It also holds that a lawyer cannot use his client as a conduit to make contact that Rule 4.2 would bar the lawyer from making, per Rule 8.4(a).

Common questions

Q: Is warning opposing counsel about possible criminal charges always an improper threat?

A: No. Under the committee's two-part test, a threat violates Rule 3.4(h) only if made solely to gain a civil advantage. Here the letter aimed to stop contact with the lawyer's client, so it was not solely for civil advantage.

Q: Why did the committee treat a threat as permissible here?

A: Following LEO 1063, the committee found the letter sought to stop a certain action (direct contact) rather than to extract a civil settlement, so on its face it did not violate Rule 3.4(h), absent other motive evidence.

Q: Can a lawyer have his client contact the opposing represented party for him?

A: No. The committee reads Rule 4.2's Comment 1 (parties may speak directly) together with Rule 8.4(a), so a lawyer may not direct his client to make contact the lawyer is barred from making.

Background and rules framework

The opinion interprets Rule 3.4(h) (Virginia's bar on threatening criminal or disciplinary charges solely to gain a civil advantage; no direct ABA Model Rule counterpart, derived from former DR), Rule 4.2 (Model Rule 4.2; communication with a represented person, and Comment 1), and Rule 8.4(a) (Model Rule 8.4(a); violating the rules through the acts of another). It applies the two-part threat test and LEO 1063.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 3.4(h) (threatening criminal or disciplinary charges for civil advantage)
• Model Rule 4.2 / Virginia Rule 4.2 and Comment 1 (communication with a represented person)
• Model Rule 8.4(a) / Virginia Rule 8.4(a) (violating the rules through another)

Other opinions cited:

• Virginia LEO 1063: a letter aimed at stopping conduct, not gaining civil advantage, does not violate the threat prohibition.
• Virginia LEOs 715, 716, 1388, 1569, 1582, 1753: prior applications of the threat prohibition.

See also

• VA LEO 1753: Threatening Criminal Charges in Collections
• VA LEO 1795: Advising Witnesses Not to Cooperate
• VA LEO 1867: Release-Dismissal Agreements

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1755.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1755

THREATENING CRIMINAL ACTION IN A
CIVIL MATTER; CONTACT BETWEEN
OPPOSING PARTIES.

You have presented a hypothetical situation in which Owner entered into a contract with
Contractor, who employed Subcontractor F. Litigation ensued between Owner, Contractor and
subcontractors on issues of breach of contract, fraud claims at law and mechanic's liens actions in
equity. In one lawsuit, a mechanic's lien was filed in the name of Subcontractor F against Owner,
who settled the mechanic's lien suit and was subrogated in whole or part to Subcontractor F's
claim for the payment against Contractor. Subsequently, a suit was filed in Subcontractor F's
name against Contractor (“the suit”). Owner's lawyer is counsel of record for Subcontractor F.
After becoming aware of the suit, but prior to service of process, Contractor contacted
Subcontractor F to discuss a possible monetary settlement of the suit. Thereafter, counsel of
record for Subcontractor F wrote a letter to Contractor's lawyer, stating: “I just learned that after
Monday's hearing [in another case not related to the suit] Contractor contacted F and requested
that F or F's counsel in the mechanic's lien action call Contractor's lawyer ‘to work something
out.’ If these ex parte communications continue and if Contractor/Contractor's lawyer are
attempting to bribe F or influence his action against Contractor or his testimony in any way, we
will take the matter up with Judge and the Commonwealth's Attorney. Contractor/Contractor's
lawyer are to have no further communications with F. Any and all communications regarding the
F action should be directed to me.”
Under the facts you have presented, you have asked the committee to opine as to whether the
portion of the attorney's letter highlighted herein constitutes a threat of criminal or disciplinary
charges solely to obtain an advantage in a civil matter.
The appropriate and controlling disciplinary rules relative to your inquiry are Rule 3.4(h),
which states that a lawyer “shall not present or threaten to present criminal or disciplinary
charges solely to obtain an advantage in a civil matter,” and Rule 4.2, which directs a lawyer not
to “communicate about the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer
or is authorized by law to do so.”
The Committee has previously opined that, under Rule 3.4(h), a lawyer should not allude to
criminal prosecution in correspondence to an opposing party or their attorney if the allusion is
made solely to obtain an advantage in a civil matter. See, LEOs 715, 716, 1388, 1569, 1582, and
1753. The Committee has developed a two-part test for analyzing communications regarding
Rule 3.4(h)’s prohibition: is the communication a threat and, if so, was the threat made solely to
obtain an advantage in a civil matter.
In applying this two-part test to the letter sent in the present hypothetical, the first prong of the
test is clearly established. The provision in the subcontractor's letter presents a definite threat of
criminal prosecution. The thornier question in this instance is whether that threat was made
solely to obtain an advantage in a civil matter. The letter does not make the usual demand for

Committee Opinion
May 7, 2001
payment/settlement by threatening prosecution; rather, the letter seeks to stop the opposing party
and/or his attorney from contacting the subcontractor directly. The letter demands that all contact
be made with the attorney himself. Instructive in the present instance is LEO 1063, in which an
attorney sends a letter to a “stalker” of his client demanding that the “stalking” cease or else
criminal and civil actions would be pursued. The Committee in LEO 1063 opined that while a
threat had been made, that threat was not solely made to obtain an advantage in a civil matter but
in whole, or at least in part, to stop the harassing actions of the stalker. Accordingly, the
Committee opined that the attorney's letter was proper, stating that “when it appears that a letter
was sent to stop a certain action rather than to gain an advantage in a civil matter, there is no
violation.” The attorney in the present hypothetical would seem, from the face of this letter, at
least in part, to be trying to stop the opposing party from contacting his own client directly.
Thus, under the reasoning of LEO 1063, as this letter is meant to stop a certain action (i.e.,
contact), then there would seem to be no violation of Rule 3.4(h).
The Committee does note that in LEO 1063, the conduct that the lawyer sought to extinguish
was clearly prohibited by law. In the present hypothetical, the conduct is contact by one party
with the opposing party. Rule 4.2 does prohibit a party's lawyer from contacting the opposing
party if represented by counsel (absent that counsel's consent); nonetheless, Comment One to that
rule expressly provides that “parties to a matter may communicate directly with each other.” The
Committee notes that Comment One should be reviewed in tandem with the prohibition in Rule
8.4(a) against violating a rule through the acts of others. Thus, while a party is free on his own
initiative to contact the opposing party, a lawyer may not avoid the dictate of Rule 4.2 by
directing his client to make contact with the opposing party. In the present hypothetical, the
content of the contact by the contractor was that the subcontractor or its counsel should contact
the contractor's lawyer to reach a settlement. Further information is not available as to whether
the contractor's lawyer was behind this conversation. The subcontractor's lawyer, from the face
of his letter, appears concerned that the contractor's lawyer did direct this contact. It is further
contact of this sort that the letter seeks to prevent. Applying the analysis from LEO 1063 to this
hypothetical, the Committee opines that on its face, the letter seeks to prevent further contact
with his client and is therefore not solely for the purpose of obtaining an advantage in the civil
matter. Thus, under the two-prong test, this letter does not by itself violate Rule 3.4(h). The
Committee’s opinion on this point rests on an absence of any further information regarding the
motive of the subcontractor’s attorney.