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