Does threatening to file criminal charges to win a civil settlement violate the rules, and must the lawyer who receives the threat report it?

Plain-English summary

In a domestic case, an attorney had information that opposing counsel's client had committed a criminal offense. The questions were whether notifying opposing counsel that criminal charges would be filed unless the case settled would violate Rule 4.5, and if so whether the lawyer receiving the threat must report it under Rule 8.3.

On the first question, the committee relied on Ethics Advisory Opinion 89-18 (similar conduct violated the prior DR 7-105, identical to current Rule 4.5) and concluded the described communication would be a clear threat to present criminal charges solely to obtain an advantage in a civil matter, unquestionably violating Rule 4.5. On the second, the committee explained that Rule 8.3 mandates reporting only violations raising a substantial question as to a lawyer's honesty, trustworthiness, or fitness, and that an inappropriate threat does not necessarily raise a substantial question as to honesty or trustworthiness, so the duty would turn on whether it raises a substantial question as to fitness. The committee worked through the ambiguity: reading "fitness" to cover any rule violation would mandate reporting everything (contrary to the Comment), while limiting it to honesty or trustworthiness would render "fitness" meaningless; it noted a commentator's suggestion to read fitness as conduct displaying "incompetence clearly amounting to malpractice" (Gerard Lynch, The Lawyer as Informer, 1986 Duke L.J. 491, 539) but found that potentially too restrictive, since even neglect not causing actionable injury might raise a substantial question as to fitness. The committee observed that South Carolina added Rule 4.5 even though the Model Rules have no equivalent, that EC 7-21 under the prior Code aimed to prevent abuse of the criminal process and impairment of civil litigation, and that these factors might support treating a Rule 4.5 violation as raising a substantial question as to fitness, but it found insufficient guidance in Rule 8.3(a) or its Comment to opine definitively. Finally, the committee concluded it may be unnecessary to resolve that, because Rule 8.3(c) provides that a lawyer need not disclose information protected by Rule 1.6, which broadly covers any information relating to the representation; the threat against a client received during an existing representation generally falls within that protection, and a lawyer might reasonably determine that disclosing the threat in a disciplinary complaint could prejudice the client (for instance, by prompting the threat to be carried out). It summarized that the threat would violate Rule 4.5; that Rule 8.3(a) might require reporting absent disclosure of protected information, though uncertainly; and that to the extent the threat is protected under Rule 1.6, a report is not required under Rule 8.3(c).

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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.

Common questions

Q: Is it a violation to threaten criminal charges to settle a civil case in South Carolina?

A: The committee said yes. A threat to present criminal charges solely to obtain an advantage in a civil matter violates Rule 4.5, citing Opinion 89-18 and the identical prior DR 7-105.

Q: Must the lawyer who receives such a threat report it?

A: The committee said it is uncertain. Rule 8.3(a) requires reporting only violations raising a substantial question as to honesty, trustworthiness, or fitness, and the committee could not say definitively that a Rule 4.5 violation meets that standard.

Q: Does confidentiality affect the duty to report?

A: Yes. The committee said Rule 8.3(c) does not require disclosing information protected by Rule 1.6, and a threat against a client received during a representation generally falls within that protection, so no report is required to that extent.

Background and rules framework

The opinion applied South Carolina Rule 4.5 (threatening criminal prosecution, derived from DR 7-105 and absent from the Model Rules), Rule 8.3 (reporting professional misconduct, including 8.3(a) and the 8.3(c) confidentiality exception), and Rule 1.6 (confidentiality), the latter two corresponding to the like-numbered Model Rules. The analysis turned on the "substantial question as to fitness" standard and the breadth of Rule 1.6.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.5 (from DR 7-105): a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
• South Carolina RPC 8.3(a) and (c) / Model Rule 8.3: duty to report violations raising a substantial question as to honesty, trustworthiness, or fitness; no duty to disclose Rule 1.6 information.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of any information relating to the representation.

Other opinions cited:

• SC Bar Advisory Opinion 89-18: a comparable threat violated the prior DR 7-105.

Other references:

• Gerard Lynch, The Lawyer as Informer, 1986 Duke L.J. 491, 539.

See also

• SC Bar Ethics Op. 92-32: Mentioning Criminal Charges in a Civil Settlement
• SC Bar Ethics Op. 92-31: Ex Parte Contact and When to Report It

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-01/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-01

An attorney is negotiating settlement in a domestic case, and he has information that opposing counsel's client has committed a criminal offense.

Questions:

1. If the lawyer with information of possible criminal conduct were to notify opposing counsel that criminal charges would be filed against his or her client if the domestic case were not settled, would such conduct violate Rule 4.5 of the Rules of Professional Conduct?
2. If a violation of Rule 4.5 occurs, would the lawyer receiving the threat be required under Rule 8.3 to report the violation to the appropriate professional authorities?

Summary:

1. The conduct described would be a violation of Rule 4.5.
2. It is not clear whether a violation of Rule 4.5 would be the type of conduct that would raise a "substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects" so as to require that it be reported. However, to the extent that a report would disclose information protected under Rule 1.6 without client consent, a report of the violation is not required under Rule 8.3 (c).

Opinion:
In the Ethics Adv. Op. 89-18, this Committee ruled that similar conduct resulted in a violation of prior DR 7-105, which was identical to current Rule 4.5. From the facts presented, it appears that a communication of the type suggested would be a clear threat to present criminal charges solely to obtain an advantage in a civil matter. Such conduct unquestionably is a violation of Rule 4.5.

Under Rule 8.3 a lawyer is not obligated to report all violations of the Rules of Professional Conduct. A report is mandatory only if the alleged violation raises a substantial question as to a lawyers' honesty, trustworthiness, or fitness as a lawyer. We do not believe that an inappropriate threat of criminal prosecution in furtherance of a civil claim necessarily raises a substantial question as to a lawyer's honesty or trustworthiness. Therefore, whether a lawyer must report the receipt of a threat in violation of Rule 4.5 depends upon whether such a violation would be found to raise a substantial question as to a lawyer's fitness to practice. On the one extreme, any violation of a disciplinary rule could be characterized as reflecting negatively upon a lawyer's fitness. Obviously, however, so broad an interpretation would mandate the reporting of all violations, which is not the intent of Rule 8.3."This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent." Comment, Rule 8.3. On the other hand, if Rule 8.3 were construed narrowly to mandate only the reporting of violations that reflect upon the honesty or trustworthiness of the lawyer, that construction would render meaningless the additional reference to offenses that raise a question as to "fitness." One commentator, recognizing the ambiguity under Rule 8.3, has suggested that the type of conduct which raises a substantial question as to fitness should be interpreted to mean conduct displaying "incompetence clearly amounting to malpractice." Gerard Lynch, The Lawyer as Informer, 1986 Duke L.J. 491, 539. A standard based on potential malpractice liability, however, may be too restrictive. We believe, for example, that neglect of a client matter may be sufficient to raise a substantial question as to fitness even though that neglect did not result in any actionable injury to the client.

In considering whether a violation of Rule 4.5 should be treated as raising a substantial question as to fitness, it is important to note that Rule 4.5 was added to the South Carolina rules even though no similar provision appears in the Model Rules. Current Rule 4.5 is identical to DR 7-105(A) under that prior Code. Ethical Consideration 7-21 under that Code stated that the purpose of such a provision is to prevent both an abuse of the criminal process and the impairment of the civil litigation system. The importance of the interests protected by Rule 4.5 and the fact that the Court specifically added Rule 4.5 when no similar provision appears in the Model Rules may support a conclusion that a violation of Rule 4.5 would raise a substantial question as to fitness. However, we do not believe that there is sufficient guidance in Rule 8.3 (a) or its Comment to offer a definitive opinion that this would be the interpretation applied by the Court.

It may be unnecessary, however, to decide whether Rule 8.3 (a) could mandate a report in the situation presented. Rule 8.3 (c) provides that a lawyer is not required under Rule 8.3 to disclose information protected by Rule 1.6. The Comment confirms that view, although noting that a lawyer ought to encourage a client to consent to disclosure if there would be no substantial prejudice to the client.Rule 1.6 is intended to offer broad protection, including within its scope "any information relating to the representation of a client." The threat of a criminal prosecution against a lawyer's client, received in the course of an existing representation, appears generally to fall within the ambit of protected information. Certainly, a lawyer might well determine that the disclosure of the threat to a disciplinary authority might prejudice the interests of the client. For example, a client might object to the disclosure of such a threat in a disciplinary complaint, out of concern that the filing of the complaint would cause the threat to be carried out.

Thus, we conclude that a threat of the type described would be a violation of Rule 4.5; that Rule 8.3(a) might require reporting of the violation absent any disclosure of protected information, although such a conclusion is uncertain; and that to the extent that the threat is protected information under Rule 1.6, a report of the disciplinary violation is not required under Rule 8.3(c).