New York City Bar Association Formal Opinion addresses what conduct by a lawyer constitutes a “threat of a disciplinary complaint”

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association Formal Opinion addressing conduct by a lawyer which may constitute a “threat of a disciplinary complaint”.  The ethics opinion isN.Y.C. Bar Assoc. Formal Op. 2015-5 (June 2015) and is online here:

In my practice, I am frequently asked about (and I represent lawyers in defending alleged violations of) Florida Bar Rule 4-3.4(g), Rules Regulating The Florida Bar, which states that a lawyer must not “present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.”

This recent New York City Bar Association formal opinion examines New York Rules of Professional Conduct 3.4(e), which states that a lawyer “shall not … present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter”.

The opinion states that a lawyer who “merely” advises another lawyer “that his conduct violates a disciplinary rule or could subject them to disciplinary action” would not violate the rule; however, including “a statement that (the lawyer) intend(s) to file disciplinary charges unless the other lawyer complies with a particular demand” constitutes an improper threat which violates the New York disciplinary rule.

The opinion further states that “’before making a report’ to the Bar, ‘an attorney is permitted to confront her adversary with evidence of misconduct to confirm that an ethical violation has occurred’ (emphasis supplied and citation omitted)  Further, the attorney may ‘ask whether opposing counsel denies the misconduct or can cast doubt on whether it occurred.  What the attorney may not do is condition the handling of a mandatory grievance on compliance with a particular demand. So, if after confronting the opposing lawyer with evidence of the misconduct, the attorney is convinced that the other lawyer in fact committed the misconduct, it would be improper, in the words of Professor Simon, to ‘invit[e] the opposing lawyer to bargain away the grievance.’”

The opinion concludes with the following admonition:

An attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct (the “New York Rules” or “Rules”). Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purpose other than to embarrass or harm another person or that violates other substantive laws, such as criminal statutes that prohibit extortion.

Bottom line:  The Bar rules in most jurisdictions (including Florida) prohibit lawyers from threatening to present disciplinary charges against another lawyersolely to obtain an advantage in a civil matter.  This opinion concludes that, under the New York disciplinary rule (which only addresses threatening criminal charges), a lawyer is permitted to confront the other lawyer with evidence of ethical misconduct to confirm that an ethical violation has occurred; however, if the lawyer states that he or she intends to file disciplinary charges unless the other lawyer complies with a demand, this would be an improper threat in violation of violate the New York rule.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670


About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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