道德意见220
威胁要提出纪律指控
威胁要提出纪律指控, either against an attorney with 酒吧 Counsel or against a non-attorney with a relevant professional board, for the sole purpose of gaining advantage in a civil matter are a violation of the 职业行为准则.
适用的规则
- 规则8.4 (g)(行为)
调查
The Committee has before it three related inquiries. Two practitioners inquire about the ethical propriety of threatening to file disciplinary charges against attorneys with bar counsel in order to gain advantage in negotiating a civil settlement. A third inquires about the propriety of threatening to file a complaint with certain professional associations of realtors and appraisers for the same purpose.
The first inquirer is an attorney whose client wishes to bring a malicious prosecution action against another attorney and his client arising out of the conduct of the second attorney and client in a previous action. 询问者问他会威胁到什么程度, 或者暗示, filing a disciplinary complaint against the opposing attorney in order to coerce a settlement of the malicious prosecution claim.
The second inquiry arises in the context of a collection action by the successor counsel of a law firm against a former client of the law firm. 在和解谈判期间, the defendant's counsel informed the inquirer that his client had requested that he prepare a complaint to be filed with 酒吧 Counsel. The inquirer asks whether this reference to filing disciplinary charges in the course of settlement negotiations is unethical.
The third inquirer is an attorney representing a real estate professional in a malpractice action. 在和解谈判过程中, opposing counsel has stated that his client has asked him to consider the filing of a complaint with the relevant associations of realtors and appraisers to seek the suspension or revocation of the inquiring attorney's client's license. The inquirer asks whether this constitutes a violation of the disciplinary rules.
讨论
The relevant disciplinary requirement in the 职业行为准则 represents a change from that which governed in the Code of Professional Responsibility. 规则8.4(g) provides that, "[i]t is professional misconduct for a lawyer to: . . . (g) seek or threaten to seek criminal charges or disciplinary charges 仅仅 在民事案件中获得利益."早期的禁令, 发现于DR 7-105, was limited to the filing of or threat to file criminal charges. Neither the history nor the published comments to 规则8.4 address the reasons for modifying the rule to include disciplinary charges. Nor do they define or otherwise explain the meaning of the term "disciplinary charges" as it is used in the Rule.1
- Filing or Threatening to File a Disciplinary Charge 再一次。st an Attorney
The prohibition against filing disciplinary charges encompasses, 从表面上看, the threat to file disciplinary charges against attorneys as set forth in two of the inquiries.2 第8条唯一的问题.4(g) is whether the charges were threatened or filed "仅仅在民事案件中获得利益.(加重语气).3
The determination of for what purpose or purposes the disciplinary charges at issue were threatened is a factual question which this Committee is not equipped to decide. 但是，我们确实注意到规则8.3(a) creates an affirmative obligation upon a lawyer to inform the appropriate professional authority where the lawyer has "knowledge that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer's honesty, 诚信, 或者在其他方面适合做澳博app."4 对规则8的评论.3, at ¶ [3], explain that the use of the word "substantial" goes to the "seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware." The comments also state that the report should be made to the Office of 酒吧 Counsel. Id.
If a complaint or report is filed with 酒吧 Counsel in a good faith effort to comply with the provisions of 规则8.3 it cannot be said to be filed 仅仅 for the purpose of gaining advantage in a civil matter.5 然而, it is unlikely that a threat to file a disciplinary complaint could be viewed as a good faith effort to comply with 规则8.3 since the obligation under that Rule is to report—and not to threaten to report—the relevant information.6 As a result, a threat to file a disciplinary charge is not protected under 规则8.3.
Disciplinary charges threatened or filed for purposes other than gaining advantage in a civil matter may implicate other rules. 这些主要包括规则3.1 which prohibits a lawyer from bringing frivolous claims. 除了, the threat of a disciplinary charge could constitute a violation of the relevant extortion and blackmail statutes, a concern expressed by the Jordan Committee as discussed above. 再一次。, the question of whether violations of these 规则 are presented in the inquiries under consideration involve legal and factual determinations that are beyond our scope and regarding which we do not express an opinion.
- 威胁要提出纪律指控 再一次。st Persons Other Than Attorneys
规则8.4(g), 用它朴素的语言, renders unethical any threat to file disciplinary charges 仅仅 in order to gain advantage in a civil matter. The type of disciplinary charge is not limited either in the Rule or in any published explanatory material. 事实上, interpreting the rule's prohibition to extend to filing charges against attorneys but not against non-attorneys would produce the anomalous result of permitting an attorney to file or threaten to file a disciplinary charge against an opposing party for the sole purpose of obtaining advantage in a civil matter but not against his or her attorney for the same reason. 本委员会拒绝赞同这一结果. The rule applies equally to complaints threatened or filed against attorneys and non-attorneys.
Since the complaint referenced in the inquiry regarding the real estate professional could result in the suspension or revocation of a license, it is a disciplinary charge within the meaning of the rule. 再一次。, the matter of whether the complaint is filed 仅仅 to gain advantage in a civil matter is a factual question which this Committee is not equipped to decide.
结论
总之, the Committee finds that threats to file disciplinary charges against either attorneys or non-attorneys 仅仅 to gain advantage in a civil matter violate 规则8.《澳博app下载网》第4(g)条.
Inquiries: 85-9-34: 90-2-8; 90-5-24
通过:1991年9月17日
1. 唯一公开的解释是, which does not address why the words "disciplinary charges" were added to the prohibition, is contained in the statement which the Jordan Committee submitted to the Court of Appeals:
The Committee also added a new paragraph (g), which is substantially similar to DR 7-105. The problem dealt with in paragraph (g) is not specifically addressed by any other provision in the proposed 规则. The Committee felt that the conduct prohibited by paragraph (g), 这就等同于普通法上的勒索, 足够严肃, 而且它的发生也足够频繁, that a rule clearly forbidding that conduct was needed.
2. Prohibiting the threatened or actual filing of disciplinary charges against attorneys for the sole purpose of gaining advantage in a civil matter is in accordance with decisions of at least seven other jurisdictions. 看到 Illinois State 酒吧 Association Committee on Professional Responsibility, 看来87 - 7, 1/29/88; Indiana State 酒吧 Association 法律道德 Committee, Opinion 10 of 1985; the Professional Ethics Commission of the 董事会 of Overseers of the 酒吧, 缅因州, Opinion 100 (10/4/89); Maryland State 酒吧 Association Committee on Ethics, Docket 86-14; Massachusetts 酒吧 Association Committee on Professional Ethics, Opinion 83-2; Michigan State 酒吧 Committee on Professional and Judicial Ethics, 意见CI-695 (10/18/81); Wisconsin State 酒吧 Committee on Professional Ethics, 意见E-89-16 (9/8/89).
3. Insofar as the first inquirer seeks to differentiate between threats and "hints" of threats, 我们没有发现相关的区别. Any suggestion of filing a disciplinary charge for the sole purpose of gaining advantage in civil litigation falls within the scope of the rule.
4. The only exception to this requirement is where the information is confidential within the meaning of Rule 1.6. Confidentiality concerns do not appear to be implicated in any of the inquiries under consideration here.
5. The Michigan State 酒吧 Committee on Professional and Judicial Ethics has determined that in the face of a similar reporting requirement, the suggestion of not reporting violations in return for favorable settlement is improper. 意见CI-695 (10/18/81).
6. 规则8.3 speaks in terms of "informing" the appropriate professional authority. Neither the Rule nor comments explain what precisely is meant by this term. 尽管如此, filing a disciplinary charge is clearly a method of informing the authority and this falls within its plain me
