Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

The Ethical Implications of Threatening Criminal, Administrative, or Disciplinary Charges

This Ethics in Brief will review California Rules of Professional Conduct [CRPC] Rule 5-100 which makes it improper for a California lawyer to “threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” (CRPC 5-100(A).)  The term “administrative charges” means the filing or lodging of a complaint with federal, state, or local governmental entity which may order or recommend the loss or suspension of a license. (CRPC 5-100(B).)  A "civil dispute" includes "an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity," including administrative hearings for professional licenses. (CRPC 5-100(C).)

CRPC 5-100 prohibits only the threat, not the actual presentation of criminal, administrative or disciplinary charges, even if the purpose was to gain an advantage in the dispute.  (CRPC 5-100(A);  See San Diego County Bar Assn Ethics Opn. 2005-1 (2005) and Los Angeles Bar Assn Form. Opn. 469 (1992).)  Also, CRPC 5-100 does not prohibit threatening civil action if the client’s demands are not met.  Such threats do not violate any statutory rule.   (Cal. State Bar Form.Opn. 1991-124;  Vapnek, Tuft, Peck & Wiener, Cal. Prac. Guide: Professional Responsibility (8:970, The Rutter Group  2016.)

CRPC 5-100 does not prevent a lawyer from advising a client of actions which may be taken by the client which constitute either criminal prosecution or the filing of administrative or disciplinary charges. (San Diego County Bar Assn. Ethics Opn. 2005-1 (2005).  “Although Rule 5-100 does not prevent the client, acting solely on his or her own accord, from making a threat which an attorney could not make, a threat which is made by a client but which originated with or was directed by the attorney can serve the same function as a threat made directly by the attorney. Rule 5-100 therefore should not be read to allow an attorney to use the client as a conduit for making a threat which the attorney could not make.” (Id.) 

CRPC 5-100 is not intended to cover the threat of filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action, for example Government Code section 905 requiring filing a Statement of Claim with appropriate governmental agency before filing a complaint. (See CRPC 5-100(B) Discussion; Vapnek, Tuft, Peck & Wiener, Cal. Prac. Guide: Professional Responsibility (8:968, The Rutter Group  2016.) 

In the leading case of Crane v. State Farm of California, 30 Cal.3d 117, 123 (1981), decided under CRPC 5-100’s predecessor CRPC 7-104, a lawyer sent a letter directly to the Robinsons who were represented by counsel in which the lawyer demanded they forward to him $100 and certain information within five days, or an action for damages would be commenced against them and that “the Department of Savings and Loan and the Attorney General’s office will be requested to assist us in solution.”  A notation on the letter indicated that copies were being sent to a named commissioner of the Department of Savings and Loan and to a named deputy attorney general.  The Supreme Court found that “[v]iewed from the perspective of the Robinsons, and considered in context” the letter and notation thereon that copies were being sent to official agencies, “could quite reasonably” be construed as a violation of the rule. (Id. at 121-123.) 

The “import of Crane is that the threat to present charges need not be expressly stated in words of a threatening nature, but may be inferred from the circumstances, and that the innocent subjective intent of the maker of the statement is not a relevant factor.” (Los Angeles County Bar Assn Formal Opn. No. 469, p. 3 (1992);  See also Cal. State Bar Formal Opn. No. 1983-73 (1983).)

In its comprehensive study of and proposed amendments to the Rules of Professional Conduct currently under review by the California Supreme Court for approval, the Commission for the Revision of the Rules of Professional Conduct [Commission] evaluated current CRPC 5-100 and recommended it be carried forward to proposed rule 3.10 with only one substantive change, namely that the definition of “administrative charges” be expanded to “any governmental organization” which would encompass foreign as well as the current federal, state or local governmental entities. The Commission noted that while CRPC 5-100 has no corresponding provision in the American Bar Association Model Rules, there are eleven other jurisdictions that currently prohibit only threats of criminal prosecution and another eleven jurisdictions that closely parallel CRPC 5-100 in prohibiting threats of criminal, disciplinary or other administrative charges. (Executive Summary of Proposed Rule of Professional Conduct 3.10 (Current Rule 5-100) fn. 1.)

The Commission also proposed several amendments to the Comments to  proposed rule 3.10 including adding an explanation in Comment [1] that the rule “does not prohibit a statement by a lawyer that the lawyer will present criminal, administrative, or disciplinary charges unless the statement is made to obtain an advantage in a civil dispute.  For example, if a lawyer believes in good faith that the conduct of the opposing lawyer or party violates criminal or other laws, the lawyer may state that if the conduct continues the lawyer will report it to criminal or administrative authorities.  On the other hand, a lawyer could not state or imply that a criminal or administrative action will be pursued unless the opposing party agrees to settle the civil dispute.”

The Commission recommends the addition of a new Comment [2] which states, in part, “This Rule does not apply to a threat to bring a civil action.  It also does not prohibit actually presenting criminal, administrative or disciplinary charges, even if doing so creates an advantage in a civil dispute.”  Comment [2] also clarifies that a “statement that the lawyer will pursue ‘all available legal remedies,’ or words of similar import, does not by itself violate this Rule.”

The Commission also recommends adding Comment [4] which states, in part, that the rule “does not prohibit a government lawyer from offering a global settlement or release-dismissal agreement in connection with related criminal, civil or administrative matters. The government lawyer must have probable cause for initiating or continuing criminal charges.”     

On a related issue, it is grounds for discipline for a lawyer, whether as a party or as an lawyer for a party, to agree or seek to agree to condition any settlement of a claim for professional misconduct on another person's promise not to report the misconduct, to withdraw a disciplinary complaint, to not cooperate with the investigation or prosecution conducted by the disciplinary agency, or to seal the record of any civil action for professional misconduct from review by the disciplinary agency.  (Bus. & Prof. Code § 6090.5; In re Matter of McCarthy (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 364, 381-382 & fn. 19.)  This rule applies to all settlements whether made before or after an action is commenced. (Bus. & Prof. Code § 6090.5(b).)  Similarly, CRPC 1-500(B) prohibits lawyers from being a party to or participating in offering or making an agreement which precludes reporting a violation of the CRPC to the State Bar.)  (See also State Bar Formal Opinion No. 2012-185.)

- Richard D. Hendlin 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**