Legal Ethics Corner

Ethics Corner 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 for SDCBA members.  

Threats, Threats, Threats: Rule of Professional Conduct 5-100 (Threatening Criminal, Administrative, or Disciplinary Charges)
A core understanding of the Rules of Professional Conduct is a must in this profession. Consequently, the occasional discovery that counsel—sometimes experienced counsel—has made a threat of an administrative or criminal proceeding in a civil matter is quite startling. Rule 5-100 provides that a “member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” As one would expect, the rule applies even if the “civil dispute” has not yet resulted in the filing of a lawsuit (subd. (C)) and does not apply where the filing of a charge with an administrative body is required as a condition to the filing of a civil action. (Subd. (B).) 

“What if I just file an administrative complaint but say nothing about it to the opposing party/attorney?” There is no prohibition on this for it is not a threat to present such charges to gain an advantage; instead, it is the permissible act of doing so. (See, e.g., Los Angeles County Bar Association Formal Opinion 469 (1992), page 3 [“Rule 5-100 does not prohibit an attorney from presenting disciplinary charges against an adversary based upon conduct arising from a civil dispute without saying anything to the opponent.”].) 
What of making more general statements such as, “all available legal remedies will be pursued unless we promptly reach a satisfactory settlement,” in a case where the circumstances lend themselves to possible criminal/administrative action? According to the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC), such an ambiguous statement, of itself, is not ethically improper. (COPRAC Formal Opinion 1991-124.) However, when skating, the thick ice is preferable. As many a case will involve conflicting versions of the same events or statements, ambiguous statements might lead to an attorney having to respond to State Bar inquiries. Such time is best utilized elsewhere.
Make no mistake—overt threats will land one in hot water. In Crane v. State Bar (1981) 30 Cal.3d 117, the attorney sent a pre-litigation demand letter with respect to a real estate deal and stated that if his demand was not met a lawsuit would be filed and “the Department of Savings and Loan and the Attorney General's office will be requested to assist us in [re]solution.” The letter was apparently copied to such state agencies. The Supreme Court affirmed the State Bar Court’s finding that the lawyer had violated the predecessor to Rule 5-100 (Rule 7-104).
Lest one think that reports to the State Bar can be made with impunity, Bus. & Prof. Code § 6043.5 makes it a misdemeanor for anyone to submit or cause to be submitted a complaint knowing it to be false and malicious. Be wary…and skate well.
--Luis E. Ventura
**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.**