Key Takeaways
- Many jurisdictions bar lawyers from threatening criminal charges to gain an advantage in a civil matter, and some, like D.C. and California, extend that to disciplinary or administrative charges.
- The ABA Model Rules have no specific ban on such threats, but extortion laws and other ethics rules still limit how a lawyer may raise criminal conduct.
- Some states, including California, specifically discipline lawyers who threaten to report a party's or witness's immigration status in employment-related disputes.
"If you do this, I'll bury you in litigation." "You'll regret that mistake." Lawyers in movies make threats all the time. But which threats are actually off-limits for a real lawyer negotiating a civil dispute?
In this TalksOnLaw Brief, Joel Cohen talks with Professor Carrie Menkel-Meadow, Distinguished and Chancellor's Professor of Law at UC Irvine School of Law, about the kinds of threats ethics rules forbid, the policy reasons behind them, and an area she calls especially touchy: threats tied to a person's immigration status.
Threatening Criminal or Disciplinary Charges
Professor Menkel-Meadow explains that the threat most specifically targeted by ethics rules is the threat of criminal action in the middle of a civil case. A lawyer cannot tell the other side, in effect, "I'll see that you get convicted and jailed." Her reasoning is simple: the lawyer is not a prosecutor. Some jurisdictions go further. In the District of Columbia, she notes, a lawyer also may not threaten to bring disciplinary charges, such as reporting opposing counsel to the bar to get them disciplined or disbarred. A threat to call the IRS and trigger an audit raises the same concern. In some places, these limits come from case law rather than the written rules.
The policy, as she describes it, is that control over prosecutions, tax audits, and bar discipline belongs to the government and the bar, not to a private lawyer, so a lawyer should not threaten to use powers that are not the lawyer's to wield.
Threats Outside the Ethics Rules
Not every threat is covered. A threat to kill someone could itself be a crime, she notes, but no ethics rule speaks to it specifically. Joel Cohen raises the more realistic case of a lawyer warning that the other side will be buried in motions it cannot afford, which leads her to the area she teaches about often because it can fall into the cracks.
Immigration Status Threats
Lawyers sometimes threaten to report a party to immigration authorities. Professor Menkel-Meadow explains that this is one reason undocumented workers often do not come forward with wage claims, and that such threats can be aimed at business owners as well. Some states, she notes, now prohibit lawyers from threatening action based on a person's immigration status.
What to Know Now
The rules vary by jurisdiction. The older ABA Model Code expressly barred threats of criminal charges to gain an advantage in a civil matter, but the ABA Model Rules adopted in 1983 dropped that provision. ABA Formal Opinion 92-363 concludes that a lawyer may raise possible criminal charges related to the civil claim if both are well founded and the lawyer does not suggest improper influence over prosecutors, while extortion laws and other rules still apply. Many jurisdictions keep a specific ban: D.C. Rule 8.4(g) covers threats of criminal or disciplinary charges made solely to gain a civil advantage, and California Rule 3.10 also covers administrative charges. California Business and Professions Code section 6103.7 makes threatening to report a party's or witness's immigration status, because that person exercised employment-related rights, grounds for discipline. Lawyers should check their own jurisdiction's rules before raising any of these subjects.
