Can a Kentucky lawyer threaten to file a bar complaint against opposing counsel over a perceived conflict of interest in a pending case?

Plain-English summary

The committee addressed a situation common to both civil and criminal cases: one lawyer believes opposing counsel has a conflict of interest and threatens to file a complaint with the Bar Association over it. The committee answered that the threat is unethical.

The opinion started from the lawyer's affirmative duty. Under EC 1-4 and DR 1-103(A), a lawyer who has unprivileged knowledge that another lawyer violated the Disciplinary Rules must report it to a tribunal or authority empowered to investigate, and failing to report can itself be misconduct (DR 1-102(A)(1)). Because the duty is to report, the committee reframed the question as why a lawyer would instead make a threat, and whether the threat is ethical. It identified the purposes a threat could serve as gaining an unfair advantage and intimidating or verbally abusing opposing counsel, neither legitimate.

Drawing on DR 7-105 (no threatening criminal charges solely for advantage in a civil matter), EC 7-37 (ill feeling between clients should not drive a lawyer's conduct toward opposing counsel), and an ALR annotation cataloguing forms of attorney verbal abuse that drew discipline, the committee concluded that making a threat to report a disciplinary violation is unprofessional and unethical. It added that the complaining lawyer may have a legal remedy, a motion to disqualify counsel, on which the committee was not authorized to advise.

Currency note

This opinion was issued in 1982 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer threaten to report opposing counsel's conflict to the bar to gain leverage?

A: No. The committee concluded that threatening to report a disciplinary violation is unprofessional and unethical, treating it as verbal abuse used for unfair advantage.

Q: What was the lawyer supposed to do instead?

A: The opinion pointed to the reporting duty itself: under DR 1-103(A) a lawyer with unprivileged knowledge of a rule violation must report it to the proper authority, and the threat is not a substitute for that duty.

Q: Did the committee suggest any proper remedy for the perceived conflict?

A: Yes. It noted the lawyer may have a legal remedy, a motion to disqualify counsel, though it said the committee was not authorized to render advice on that motion.

Background and rules framework

The opinion applies several provisions of the former Code: DR 1-103(A) and EC 1-4 (duty to report unprivileged knowledge of a violation), DR 1-102 (misconduct), DR 7-105 (no threatening criminal charges for advantage in a civil matter), and EC 7-37 (civility toward opposing counsel). The modern analogs are Model Rule 8.3 (reporting professional misconduct) and Model Rule 8.4 (misconduct). The committee's point is that the rules create a duty to report, not a license to threaten reporting as a litigation tactic.

Citations and references

Rules of Professional Conduct:

• DR 1-103(A), EC 1-4 (duty to report a violation); modern analog Model Rule 8.3
• DR 1-102 (misconduct); modern analog Model Rule 8.4
• DR 7-105 (no threatening criminal charges for advantage in a civil matter)
• EC 7-37, EC 1-5, EC 9-6; Canon 5; Canon 9

Other references:

• Attorney's Verbal Abuse of Other Attorney, 87 ALR3d 351, at 354-355, cataloguing verbal abuse that has drawn discipline.

See also

• KBA Ethics Op. E-397: Ethics Committee and Disqualification Motions
• KBA Ethics Op. E-351: Lawyer Loans, Gifts, and Campaign Contributions to Judges

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-265.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-265
Issued: November 1982

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer threaten to file a complaint with the Bar Association against a lawyer in a pending court case where the first lawyer believes that the second lawyer has a conflict of interest?

Answer:

No.

References:

SCR 3.130; SCR 3.160; DR 1-102; DR 1-103; DR 7-105; EC 1-4; EC 1-5; EC 7-37; EC 9-6; Canon 5; Canon 9.

OPINION

The fact situation presented is applicable in both civil and criminal cases, and is one which has long concerned members of the bar.

First, the Supreme Court, in adopting the American Bar Association's Code of Professional Responsibility, stated in SCR 3.130 that it accepts the principles embodied in the Code.

The Rules are clear that when a lawyer receives information that is "unprivileged" that a fellow member of the Bar has committed a violation of the Disciplinary Rules, that the lawyer has an obligation to report such information to the appropriate investigative body for proper action. EC 1-4 provides in part as follows:

"The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules."

Accordingly, DR 1-103(A) provides as follows:

"A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."

A lawyer is obligated to report a violation of the Disciplinary Rules, and the failure to do so may itself constitute misconduct. See DR 1-102(A)(1).

Because a lawyer is under an obligation to report a violation of the Disciplinary Rules, the question under examination becomes "What is the reason for a lawyer to make a threat, and is the making of the threat unethical?" In examining this issue, consideration should be given to the following:

"A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." DR 7-105.

"In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system." EC 7-37

It appears that the purposes that could be achieved by making the threat are:

(1) an unfair advantage, and
(2) intimidation and verbal abuse of opposing counsel.

In the annotation Attorney's Verbal Abuse of Other Attorney, 87 ALR3d 351, this course of conduct was examined, and the following summary comment is provided:

"Among the forms of verbal abuse which have resulted in disciplinary action being taken are (1) accusing another attorney of the following: being unethical, trying to impeach one's own client, bad faith, trying to impeach honest Answers, putting words into the mouths of witnesses, doing what the court had admonished not to do, playing dirty pool, sandbagging witnesses, trying to beat his client about, abusing witnesses, making untrue statements, being in contempt of court, perversion of justice, smear type tactics, highly improper conduct, making a false and fraudulent affidavit, and inducing a witness to leave the jurisdiction of the court; (2) referring to opposing counsel as a "sneak and a snitch"; (3) impugning the honesty, integrity, and motives of another attorney; (4) charging another attorney with cheating, bribery, fraud, trickery, robbery, subornation of perjury, conspiracy, misconduct in office, collusion with the judge, criminal misconduct, agreeing to run a place for the sale of intoxicating liquors in violation of law, and conniving to have a person judged insane; (5) falsely stating that an attorney had been sued for fraud; (6) accusing another attorney of criminal action; and (7) making false representations as to the impropriety of political contributions made by attorneys, gross neglect of a case, and excessive drinking." (Emphasis added) At Pages 354-355.

The case-by-case discussion analyzes the cases and a clear conclusion is drawn that the making of threats is a form of verbal abuse, and it has been condemned.

Accordingly, the Committee concludes that the making of a threat to report a violation of the Disciplinary Rules is unprofessional and is unethical. See EC 1-5 and EC 9-6.

It should be noted that the lawyer may have legal remedies available; that is, Motion to Disqualify Counsel, of which this Committee is not authorized to render advice.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.