Under former California Rule 5-100, may a lawyer's settlement demand letter say that 'all available legal remedies will be pursued' if a prompt settlement is not reached, when the dispute could also support criminal or administrative action?

Currency note

This opinion was issued in 1991, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rule 5-100; the substance is now in current California Rule 3.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered an attorney prosecuting a civil dispute whose underlying facts could also support criminal or administrative action. The lawyer proposed a settlement letter to the opposing side stating that unless a satisfactory settlement was reached promptly, "all available legal remedies will be pursued." If the opposing party was represented, the letter would go to opposing counsel; if not, directly to the party.

The committee opined that former Rule 5-100(A) prohibited a member from threatening "to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute," and that the Discussion confirmed the rule applied prior to formal filing of a civil action. The committee noted that former Rule 7-104 (operative until May 26, 1989) tracked almost exactly the new Rule 5-100, and that ABA Model Code DR 7-105(A) was analogous. The committee opined that reported discipline cases under former Rule 7-104 involved overt threats, citing Libarian v. State Bar, 38 Cal.2d 328 (1952); Bluestein v. State Bar, 13 Cal.3d 162 (1974); and Crane v. State Bar, 30 Cal.3d 117 (1981).

The committee opined that the proposed language was ambiguous. The statement could imply that the writer would aggressively prosecute the civil matter to its conclusion. Treating that ambiguous formulation as a Rule 5-100 violation would have a chilling effect on legitimate civil settlement efforts. The committee opined that it was not prepared to interpret ambiguous settlement language as a Rule 5-100 violation, and contrasted the situation with State Bar Formal Op. 1989-106, which held that an offer to dismiss a criminal prosecution may not be conditioned on a civil release because that constituted a threat under the predecessor rule.

Common questions

Q: Is "all available legal remedies will be pursued" a Rule 5-100 violation?

A: Per the opinion, no, not by itself. The committee opined that the formulation was ambiguous and could refer to aggressive prosecution of the civil case alone, which is not a threat of criminal, administrative, or disciplinary charges within Rule 5-100.

Q: What kind of threat does Rule 5-100 reach?

A: Per the opinion (relying on Libarian, Bluestein, and Crane), the rule reaches overt threats to present criminal, administrative, or disciplinary charges to coerce settlement of a civil dispute. The committee opined that mere ambiguity does not suffice; the threat must be specific enough to be identifiable as a Rule 5-100 violation.

Q: Does Rule 5-100 apply only after a civil action is filed?

A: Per the opinion (relying on the Discussion to Rule 5-100), no. The committee opined the rule applies prior to the formal filing of a civil action.

Q: How is this different from CA State Bar Op. 1989-106?

A: Per the opinion, that earlier opinion involved a specific offer to dismiss a criminal prosecution conditioned on a civil release. The committee opined that this is an overt threat regarding criminal charges, where the present scenario involved only ambiguous language about "all available legal remedies."

Background and rules framework

The opinion interprets former California Rule 5-100 (and its predecessor Rule 7-104), parallel to ABA Model Code DR 7-105(A). The committee noted that the then-current ABA Model Rules of Professional Conduct (adopted 1983) did not carry forward an equivalent express prohibition. Former Rule 5-100 has since been replaced by current California Rule 3.10.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 5-100, including (A) and (C); and its Discussion
• Former California Rule 7-104 (operative until May 26, 1989) (predecessor)
• ABA Model Code DR 7-105(A) (analog, referenced)

Cases:

• Libarian v. State Bar, 38 Cal.2d 328 (1952), overt threat to present criminal complaint
• Bluestein v. State Bar, 13 Cal.3d 162 (1974), discipline for coercive threats
• Crane v. State Bar, 30 Cal.3d 117 (1981), same
• Kinnamon v. Staitman & Snyder, 66 Cal.App.3d 893 (1977), threat to file criminal complaint

Other opinions cited:

• Cal. State Bar Formal Op. 1989-106 (offer to dismiss prosecution conditioned on civil release; improper)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1991-124.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1991-124

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION 1991-124

ISSUE:

Is it ethically proper for counsel retained by a client in a civil matter to send a letter to the opposing side stating that unless a prompt and satisfactory settlement is reached "all available legal remedies will be pursued?"

DIGEST:

A statement that "all available legal remedies will be pursued" unless satisfactory settlement is promptly forthcoming is not, in itself, ethically improper.

AUTHORITIES INTERPRETED:

Rule 5-100 of the Rules of Professional Conduct of the State Bar of California.

DISCUSSION

An attorney is retained by a client to prosecute a civil dispute. The nature of the dispute can be interpreted as also resulting in possible criminal or administrative action. The attorney wishes to send a letter to opposing side which will state that unless a satisfactory settlement of the matter is reached promptly "all available legal remedies will be pursued." If the opposing individual is represented, the letter will be sent to opposing counsel. If unrepresented, the letter will be sent directly to that individual.

The relevant subsections of Rule of Professional Conduct 5-100 state:

(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

. . . .

(C) As used in paragraph (A) of this rule, the term "civil dispute" means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state or local governmental entity.

The Discussion section to the rule ". . . makes clear that the rule is applicable prior to the formal filing of a civil action."

Former California Rule of Professional Conduct 7-1041 tracks, almost exactly, present California rule 5-100. American Bar Association Model Code of Professional Responsibility DR 7-105(A)2 is also analogous to the California rule. However, the more recent American Bar Association Model Rules of Professional Conduct, adopted by the American Bar Association House of Delegates in 1983, do not contain provisions proscribing the conduct prohibited by California rule 5-100 and American Bar Association Model Code of Professional Responsibility DR 7-105(A).

The violation of rule 5-100 is to " . . . threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." Reported cases of attorney discipline concerning allegations of violation of former rule 7-104 involve overt threats made to coerce payment to settle a dispute. (Libarian v. State Bar (1952) 38 Cal.2d 328, 329 [239 P.2d 865]; Bluestein v. State Bar (1974) 13 Cal.3d 162, 167 [118 Cal.Rptr. 175]; Crane v. State Bar (1981) 30 Cal.3d 117, 121 [177 Cal.Rptr. 670].) For example, threatening to file a "criminal complaint" to obtain a civil advantage is improper (Libarian v. State Bar, supra, 38 Cal.2d at p. 329; Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 895 [136 Cal.Rptr. 321].)

The meaning of the proposed language that "all available legal remedies will be pursued" unless a satisfactory settlement is promptly forthcoming, is ambiguous. This language, alone, is not an overt threat to present criminal or administrative charges to obtain an advantage in the civil dispute. For example, the proposed statement could imply that absent prompt settlement, the writer will aggressively prosecute the civil matter to its conclusion. Thus, to interpret the meaning of the letter as a threat in violation of rule 5-100 would have a chilling effect on the legitimate effort to promptly settle the civil dispute. This Committee is unwilling to interpret ambiguous language made in attempts to settle civil disputes as violations of rule 5-100. (See however, State Bar Formal Opinion No. 1989-106 which states in its Digest: "An offer to dismiss a criminal prosecution may not be conditioned on a release from civil liability because that practice constitutes a threat to obtain an advantage in a civil dispute in violation of the Rules of Professional Conduct.") This Committee is of the opinion that the proposed statement is not, in itself, ethically improper.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charges with regulatory responsibilities of any member of the State Bar.

1 Former rule 7-104, Rules of Professional Conduct (operative until May 26, 1989), stated:

A member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action nor shall he present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.

2 American Bar Association Model Code of Professional Responsibility DR 7-105(A) states:

(A) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.