Can a California attorney pursuing a client's fee dispute against former counsel threaten to have the client report that counsel to the State Bar to gain an advantage?

Plain-English summary

Attorney A, representing the former clients of Attorney B in a fee dispute with B, stated during a telephone call that he would "have [the clients] report [Attorney B] to the State Bar," and in a follow-up letter wrote that he had suggested the clients report B's conduct to the State Bar. The question was whether it is unethical to mention or threaten State Bar discipline proceedings during a fee dispute.

The committee identified Rule 5-100, which replaced former Rule 7-104 and provides that a member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute, with "civil dispute" defined to include a controversy over the rights and duties of parties under civil law. It identified the rule's purpose as prohibiting the use of the threat of ancillary proceedings to gain an advantage in a civil dispute, while not deterring the filing of a good-faith charge of professional misconduct.

Relying on Crane v. State Bar, the committee identified that a threat to present charges need not be expressly stated in threatening words but may be inferred from the circumstances, and that the maker's innocent subjective intent is not relevant; if a statement can reasonably be interpreted as a threat to present criminal, administrative, or disciplinary charges in the context of a civil dispute, that is sufficient to constitute a violation. Applying that standard, the committee concluded that Attorney A's statements could reasonably be taken as an impermissible threat under Rule 5-100.

The committee identified that Rule 5-100 does not prohibit an attorney from presenting disciplinary charges against an adversary, based on conduct arising in a civil dispute, without saying anything to the opponent, where the attorney has a good-faith basis. It noted that an attorney deciding to present such charges should be aware of Business and Professions Code section 6043.5, which makes it a misdemeanor to report or cause a complaint to the State Bar knowing the report to be false and malicious.

Currency note

This opinion was issued in 1992, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. It interprets former Rule 5-100 (formerly Rule 7-104), which prohibits threatening criminal, administrative, or disciplinary charges to gain advantage in a civil dispute. The ABA Model Rules retain no direct counterpart to this prohibition (the former ABA Model Code DR 7-105 was not carried forward), and the current California rule is renumbered 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 mentioned here.

View original opinion

Common questions

Q: Can a lawyer threaten to report opposing counsel to the State Bar to gain leverage in a fee dispute?

A: Per the opinion, no. The committee concluded that threatening to have a client present disciplinary charges to obtain an advantage in the dispute subjects the attorney to disciplinary action under Rule 5-100.

Q: Does the threat have to be stated in explicit threatening words?

A: Per the opinion, no. Relying on Crane v. State Bar, the committee identified that a threat may be inferred from the circumstances and that the maker's subjective intent is not relevant; the test is whether the statement can reasonably be interpreted as a threat.

Q: Can a lawyer still report misconduct in good faith?

A: Per the opinion, yes. The committee identified that Rule 5-100 does not bar presenting good-faith disciplinary charges based on conduct in a civil dispute without saying anything to the opponent, and cautioned that Business and Professions Code section 6043.5 makes a knowingly false and malicious report a misdemeanor.

Background and rules framework

The opinion interprets former California Rule 5-100 (formerly Rule 7-104), which prohibits threatening criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. The ABA Model Rules contain no direct counterpart; the analysis is anchored in Crane v. State Bar and Business and Professions Code section 6043.5.

Citations and references

Rules of Professional Conduct (former):

• California Rule 5-100 (threatening criminal, administrative, or disciplinary charges), formerly Rule 7-104

Statutes:

• California Business and Professions Code section 6043.5 (knowingly false and malicious report to the State Bar)

Cases:

• Crane v. State Bar, 30 Cal.3d 117 (1981), objective standard for a prohibited threat

Other opinions cited:

• California State Bar Formal Opinion 1983-73
• LACBA Formal Opinions 355, 440

See also

• LACBA Ethics Op. 531: Evidence From an Opposing Party's Former Employee
• LACBA Ethics Op. 521: Fee Dispute During Representation and Conflict of Interest
• LACBA Ethics Op. 535: Charging a Former Client for Fee-Collection Time and Costs

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010974