Threats and other aggressive tactics can be an effective tool at times in negotiations. Legal ethics rules in some jurisdictions, however, set limits on threats to pursue criminal, administrative, or disciplinary proceedings to gain an advantage in civil suits. Professor Carrie Menkel-Meadow of UC Irvine Law explains the types of threats that are disallowed against opposing counsel or counter-parties and the policy reasoning behind such prohibitions.
Carrie Menkel-Meadow is the Distinguished and Chancellor's Professor of Law at UC Irvine School of Law and an expert in the dispute resolution field.
An Interview with Legal Ethics Expert – Prof. Carrie Menkel-Meadow
Joel Cohen (Host): Carrie, let’s turn the corner to another tool or perhaps notorious thing that lawyers are sometimes accused of doing, which is threatening the other side. “If you do this, I’ll bury you in litigation,” or, “You’ll regret that mistake.” We see it in movies. Is it actually permitted ethically?
Carrie Menkel-Meadow (CMM): There’s one kind of threat that is specifically prohibited in the ethics rules. And that is in the middle of a civil case, I can’t say, “Joel, I’m gonna see that you get convicted and thrown in jail for the rest of your life.” I’m not allowed to threaten you with criminal action. Why? Because I’m not a prosecutor. Now, some jurisdictions — this is interesting — in the District of Columbia, you may also not threaten somebody with an administrative action meaning, “Joel, that was an unethical thing you do, and I’m gonna take you to the Bar and get you disciplined and disbarred.” I can’t do that. And I also can’t say, “I know you’ve been cheating on your taxes, so I’m gonna call up the IRS and have you audited.” That’s also threatening either criminal or administrative action. And the lawyer ethical rules say that I can’t threaten you with that. Now some places have this by case law, so even if it’s not in the rules, you’re not… And the idea is the only reason the threat is prohibited is because somebody at a policy level thinks that the control of those things that I’m threatening you with are not mine. It’s the IRS or it’s the state bar. And I can’t threaten you with something I can’t follow through on. Obviously, if I say I’m going to kill you, for example, that could be an actionable crime, my threatening you that way. But there’s nothing in the ethics rules that says I can’t say that.
Host: But what about threats that are more realistic to come out of the mouth of a lawyer? I would shudder to hear a lawyer threatening to kill opposing counsel, but you may imagine a case where a lawyer says, “Look, you don’t want to bring this to court. I'm gonna bury you. I’m gonna litigate and file so many motions, and I’m gonna bring such power to bear that your client won’t be able to afford this.”
CMM: The thing that’s really touchy – I teach this all the time because it might fall in the cracks of what I just told you about for individuals. This is why people that are undocumented don’t come forward and complain about wage claims and things tlike that. Lawyers will threaten, “I’m gonna tell ICE about your client who’s here illegally.” And that can be not just for wage workers but somebody who’s got a really big business and isn’t fully legal in the country. And that’s the kind of thing that lawyers threaten. And some states now prohibit that, that you can’t threaten somebody that you’re gonna take action about their immigration status.