Threatening Criminal or Administrative Prosecution in a Civil Case:
The 1997 Amendments to Colo. RPC 4.5
© 1998 Charles F. Luce, Jr.
All Rights Reserved Worldwide
One of the more frequent inquiries to the CBA Ethics Committee "Hot Line" is "what constitutes a 'threat' of criminal prosecution?" The answer is important, because the distinction between advising opposing counsel that her, or her client's, conduct has more than civilly actionable consequences, and threatening that you may do something about it, is that the latter violates the Colorado Rules of Professional Conduct ("Colo. RPC"), while the former usually does not.
RPC 4.5 has its genesis in the DR 7-105(A) of the former Code of Professional Conduct. That Rule prohibited threatening "to present criminal charges solely to obtain an advantage in a civil matter." (Emphasis added.) In adopting its Model Rules of Professional Conduct, the American Bar Association deliberately omitted any counterpart to DR 7-105(A), believing, first, that extortionist threats are clearly prohibited elsewhere in the Rules,(1) and, second, that under certain circumstances it may not be improper to use the possibility of presenting criminal charges against an adversary if the criminal matter is related to the civil claim. See ABA Comm. On Ethics and Professional Responsibility Opinion 92-363 (1992) (Attorney may use possibility of presenting criminal charges against opposing party in civil action to gain relief for client, as long as civil and criminal matters are related and attorney does not attempt to influence the criminal process).
The Colorado Rules part philosophic company with the ABA's Model Rules on this issue; rather than delete DR 7-105(A), the Colorado Supreme Court expanded it, using California Rule of Professional Conduct 7-104 as a model. As originally adopted in January 1993, Colorado Rule 4.5 provided:
(a) A lawyer shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.
Rule 4.5 expanded DR 7-105(A) in two significant ways: First, "administrative and disciplinary charges" were added to "criminal charges," broadening the scope of prohibited threats. The court correctly reasoned that threats to report conduct to the Internal Revenue Service, or to professional disciplinary authorities, constitute as great an abuse of civil process as threats of criminal action. Indeed, given the commendable reluctance of district attorneys everywhere to be used as pawns by civil litigants, threats of "administrative and disciplinary charges" are more subversive of civil process than threats of criminal prosecution, simply because they are more credible. Second, the previously spacious safe harbor of DR 7-105(A) -- that threats not solely made to obtain an advantage in a civil matter were not a violation of the Code -- was transmuted into a hard rock of liability. As adopted, Colorado Rule 4.5 bars all threats of criminal, administrative or disciplinary action, regardless of motive, and further makes sanctionable actually "present[ing] or "participat[ing] in presenting" such charges, if the presentation or participation is "solely to obtain an advantage in a civil matter."
The 1997 amendments to Colorado Rule 4.5 further expand prohibited conduct. The phrase "civil action" has been replaced with "civil matter," the Official Comment making clear that the Rule is applicable to threats made, "whether or not an action has been commenced." At the same time, however, the Colorado Supreme Court apparently realized that a communication to one's adversary regarding potential criminal, administrative or disciplinary liability need not be, ipso facto, a threat intended to subvert civil process. Accordingly, the court added a new, improved safe harbor, subsection (b):
(b) It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes.
This addition, while welcome, is not, of course, self-executing. The determination of whether a communication is a friendly "notice" or a sanctionable "threat" must still be made on an ad hoc basis. It is foreseeable that one communicating attorney's "notice" will be perceived as another receiving attorney's "threat." Still, subsection (b) does, for the first time, give express comfort and a safe harbor to attorney good Samaritans. As importantly, counsel need no longer feel compelled to stew silently while opposing counsel systematically violates the Rules of Professional Conduct, for fear that if she calls "a spade a spade" the most likely disciplinary action to result will be against her for threatening disciplinary charges.
If the prodigal adversary is merely misinformed, such that notifying him or her of misconduct may put an end to it, the safe harbor created by Rule 4.5(b) is ample. If, however, the misbehavior is so flagrant that mere notification is unlikely to produce results, threats of disciplinary action will probably also be unavailing, and are unprotected by subsection (b). In such instances, when it comes to filing a Request for Investigation, it is still best to head the wisdom of that modern American corporate philosopher, Nike®: don't threaten it, "Just Do It." Unless done "solely to obtain an advantage in a civil matter," counsel should not shrink or shirk from presenting appropriate criminal, administrative or disciplinary charges when the interests of justice require it, even if it may incidently aid one's client's civil cause.
In drawing the line between "threat" and "notification," the Official Comment to Colorado Rule 4.5 offers this guidance:
[F]actors that should be considered to differentiate threats from notifications in difficult cases include (A) an absence of any suggestion by the notifying lawyer that he or she could exert any improper influence over the criminal, administrative or disciplinary process, (B) consideration of whether any monetary recovery or other relief sought by the notifying lawyer is reasonably related to the harm suffered by the lawyer's clients. Where no such reasonable relation exists, the communication likely will constitute a proscribed threat. For example, a lawyer violates Rule 4.5 if the lawyer threatens to file a charge or complaint of tax fraud against another party where issues of tax fraud have nothing to do with the dispute. It is not a violation of Rule 4.5 for a lawyer to notify another party that the other person's writing of an insufficient funds check may have criminal as well as civil ramifications in a civil action for collection of the bad check.
The Colorado Supreme Court has justifiably shown little patience for attorneys who attempt to use extraneous judicial or administrative processes as pins with which to skewer a civil opponent like a cupie doll. See, e.g., People ex rel. Gallagher v. Hertz, 198 Colo. 522, 608 P.2d 335 (1979) (threats and vigorous advocacy of criminal prosecution in a receivership action violated DR 7-105(A)); People v. Holmes, 921 P.2d 44 (Colo. 1996) (offensive letter threatening criminal prosecution); People v. Gonzales, 922 P.2d 933 (Colo. 1996) (publicly censuring attorney for threatening to bring disciplinary charges); People v. Farrant, 852 P.2d 452 (Colo. 1993) (threats to induce withdrawal of objection to application for attorney fees).(2) See also 24 The Colorado Lawyer 2714 (December 1995) (summarizing private admonishment for violation of RPC 4.5 for communicating the veiled threat, "you know what happens to attorneys who commit crimes"). Nevertheless, the 1997 amendments to Rule 4.5 make it clear that neither does the court intend to gag ethical lawyers who may "dare" to call an opponent's misconduct as they reasonably see it.
1. E.g., RPC 8.4(b) (making sanctionable "commit[ting] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."); RPC 4.4 (prohibiting tactics that "have no substantial purpose other than to embarrass, delay, or burden a third person"); and RPC 3.1 (prohibiting assertion of frivolous claims). See generally ABA Opinion 94-383 (1994) (Model rules "constrain" threats to file a complaint against opposing counsel to obtain an advantage in a civil case, even though they do not specifically address the issue).
2. This per curiam opinion from a grievance proceeding in which the respondent attorney defaulted is interesting if for no other reason than it clearly demonstrates that self-serving disclaimers -- here the statement "I don't send you this letter by any means as an extorsive device for my fees," interjected in the middle of a series of clumsily unveiled threats patently calculated to do exactly that -- are likely to be given as little weight as they deserve.