In the past few weeks unKAP-ed Legal, PLLC has come across the issue of whether a civil attorney can "threaten" criminal prosecution in a demand letter or civil litigation. The answer is not as clear cut as one might think, and largely depends on the purpose of the threat.
The American Bar Association (hereinafter, "ABA") "Model Code of Professional Responsibility" originally contained an express prohibition on making threats of criminal prosecution in civil litigation. Former DR 7-105 stated: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to gain advantage in a civil matter. When the model code was withdrawn and replaced in 1983, the new "Model Rules of Professional Conduct" dropped the express prohibition contained in DR 7-105. However, the notes of the Model Rules of Professional Conduct indicated that its drafters believed the express prohibition to be redundant, as Model rules 8.4 (Misconduct); 4.4 (Respect for Rights of Third Parties); and 3.1 (Meritorious Claims and Contentions) already provided adequate limitations that would encompass criminal threats of prosecution in civil proceedings.
Since the adoption of the Model Code of Professional Conduct, and the adoption of State specific code provisions which contain express prohibitions or follow a similar path from the Model Rules, Courts have dealt numerous times with civil litigants who threaten criminal prosecution during the course of their civil case. The courts dealing with the issue have generally focused on the intent of the attorney in making the threat as well as whether the threat was solely for the purpose of obtaining advantage in the litigation. These terms are obviously difficult to define, and have sparked substantial litigation regarding the ethical obligations of attorneys in civil proceedings.
In Florida, unlike the Model Code formulated by the ABA, there is an express prohibition on using threats of criminal prosecution to gain advantage in a civil proceeding. Rule 4.-3.4 of the Florida Rules of Professional Conduct provides: A lawyer shall not . . . present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." Interestingly, in the next line, the same rule prohibits: "present[ing], participat[ing] in presenting, or threaten[ing] to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.
Pursuant to the ethical rules in Florida a civil attorney may arguably threaten criminal prosecution in their civil case, so long as the purpose of that threat is not to gain advantage in the proceeding. Arguably, the safe and best practice would be to avoid these types of tactics all together, as proving intent and purpose can be difficult – especially in the context of a written threat that does not have the benefit of tone, context, or other social cues that could help determine the purpose or intent behind the threat. Attorney's faced with an opposing counsel that arguably "threatens" criminal prosecution should be wary however of their own ethical obligation under Florida Rule 4-3.4 to avoid threatening disciplinary charges in response to the threat of criminal prosecution. Again, the "threat" will have to be proven to have been made solely for the purpose of gaining advantage, and as noted, intention is a difficult concept to ascertain after the fact. The attorney threatening to report misconduct should be cautious of their own words, tone, and purpose in their threat to report.
Long and short: save yourself the headache- avoid threatening criminal prosecution in a civil dispute. Ultimately these threats rarely "scare" a seasoned opposing counsel into a settlement, and more times than not such a threat would be construed to have no other purpose apart from attempting to gain advantage in the corresponding civil matter.