The Minefield of Threats in Litigation

When negotiating to settle a lawsuit, can a lawyer gain leverage for his client by threatening to report the adversary’s actions to the criminal authorities?  What are the ethical limits on such threats, if any?  Do such threats expose the threatening lawyer to any criminal or tort liability of his own? 

William C. Saturley and Beth Kissinger recently co-wrote an article on these topics, “The Minefield of Threats in Litigation.”  The article was published in the Fall 2012 issue of the New Hampshire Bar Journal. 

The article examines whether threatening criminal prosecution or a report to a regulatory body is just “hard bargaining,” or whether it breaches ethical lines.  The answer varies, even amongst otherwise comparable jurisdictions such as those in the New England region, surprisingly.

The conflict in treatment stems, in part, from each jurisdiction’s adherence to different codifications of ethical standards.  The text of the 1969 version of the Model Code of Professional Responsibility, for example, is unequivocal on the subject of threats. DR 7-105(A) provides: “[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain advantage in a civil matter.”  Under the 1983 Model Rules, by contrast, no direct prohibition is found.  Commentary to the Rules suggests that any attempt to improperly employ threats was already prohibited by other provisions of the Model Rules, such as Rule 4.4(a), which prohibits a lawyer from taking any action that “has the primary purpose to embarrass, delay or burden a third person.”

The article also examines possible criminal and tort liability, under New Hampshire law, for the use of such threats. 

The Minefield of Threats in Litigation

Lawyers on the move: steps to take before dancing with a lateral hire

William C. Saturley and Kenneth E. Rubinstein co-wrote a risk management article, “Lawyers on the move: steps to take before dancing with a lateral hire.”  The article suggests actions firms should consider taking prior to hiring a lateral attorney.  While the article is written specifically for law firms, the suggestions are applicable to all professional fields:

●  Verify the apparent skills, and the accuracy of credentials (such as academic history), of the prospective new hire.

●  Research both the disciplinary and malpractice claims history of the individual.

●  Interview others who have personal knowledge of the attorney’s performance.

●  Review recent work product of the prospective hire. (Make sure the work is that of the hire and not a supervised associate).

●  If the lateral is bringing business to the firm, consider potential conflicts of interest with existing clients.  In this regard, a recent change to Rule 1.6 of the Model Rules of Professional Conduct, and accompanying commentary, permits limited disclosure by a lawyer about clients he represents to a prospective new hiring firm, without prior client consent. 

●  Consider potential client relation problems (do the fee arrangements with the lateral’s clients conflict with the firm’s standard arrangements?).  Evaluate whether the lateral’s clients appear financially stable.

●  Define the lateral’s staffing expectations.

●  Make sure the firm’s administrative requirements (such as prior engagement letters, or compliance with assignment committee directives) will be adhered to by the lateral.

●  Consider deferring full partnership status to a lateral hire until a reasonable period of time has passed, to allow further evaluation of the candidate; and then closely monitor performance during that period of time.

●  If the firm requires disclosure of income tax returns from its existing partners, consider requesting a return and a personal financial statement from the prospect.

The article was published in the January 2013 issue of the Massachusetts Lawyers Journal, a publication of the Massachusetts Bar Association:  Massachusetts Bar Association : Lawyers on the move: steps to take before dancing with a lateral hire