The judicial process is adversarial by definition. That doesn’t necessarily mean that every case is contentious but many are. In these cases, particularly when emotions are involved, attorneys and their clients often feel strongly that they have been wronged and search for opportunities to be vindicated. When an attorney believes that the other side is asserting a frivolous claim or acting with an improper purpose it may be tempting to raise the prospect of filing a disciplinary action against the opposing lawyer. However, attorneys must tread cautiously when threatening disciplinary action in litigation. Doing so could violate ethics rules and potentially result in disciplinary action against the attorney making the claim.
The New York City Bar Association recently published a formal opinion addressing the circumstances where an attorney may threaten to file a disciplinary action against another lawyer. In analyzing the ethical concerns, the Association noted that compliance with the rules of conduct depends in part on the mandatory reporting obligation.
Specifically, Rule 8.3 provides that a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty must inform the appropriate professional authority. Because there is a mandatory duty to report, an attorney violates the ethics rules by failing to report a known substantial violation. It necessarily follows, then, that threatening to file a disciplinary complaint is a violation of the rule because the disclosure would be dependent upon on whether the other attorney accedes to the demand. In this context, the association defined a “threat” as a statement that another will be harmed for failing to undertake a certain action.
Where an attorney merely suspects that her adversary is in violation of the ethics rules, and reporting is not mandatory under Rule 8.3, the association determined that an attorney has more leeway to admonish the opposing lawyer about the perceived improper conduct. Nevertheless, the association made clear that an attorney cannot use the threat of disciplinary complaint to gain a strategic advantage, or if the threat serves to embarrass or harm the other lawyer or his client. Doing so is not only a violation of ethics rules, but could potentially implicate criminal statutes against extortion.
Attorneys and other professionals must think twice before pursuing disciplinary charges against their adversaries so as to ensure that the manner in which the complaint is filed does not violate any ethics rules in its own right. In order to file a disciplinary action, counsel must have a good faith belief that the other lawyer is engaged in conduct that is in violation of an ethics rule, and must not condition the reporting of the violation on any subsequent action of opposing counsel. Attorneys who threaten disciplinary action for an improper purpose may quickly find themselves in violation of ethics rules or state substantive laws.