[ATTORNEY DISCIPLINE]

Threatening to gain an advantage

by Diane Karpman


You are not permitted to threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. "Civil dispute" has been interpreted broadly to include an existing or potential controversy, whether or not an action has been filed or commenced.

An explicit threat is not required for violation of this rule. Such a threat may be implied or inferred from the surrounding circumstances.

The paradox is that you are permitted actually to file charges that are disciplinary, administrative or criminal; in terms of this rule, it is the threat that is prohibited, not the filing.

The rule developed from a body of case law in which attorneys were disciplined for conduct which could be characterized as extortion.

Lawyers have been disciplined for sending a letter to opposing counsel threatening the intervention of the Department of Savings and Loan and the Attorney General’s office, and sending a copy of the letter to those agencies (Crane v. State Bar (1981) 30 C3d 177, 177 Cal. Rptr.670); for offering to drop already-filed criminal assault and battery charges against a husband in exchange for payment of the wife’s lawyer’s fees (Bluestein v. State Bar (1975) 13 C3d 162, 118 Cal.Rptr. 175); and for threatening to have the client file criminal charges against client’s former employer, unless payment of money was received (Libarian v. State Bar (1952) 38 C2d 328).

There is only one State Bar Court reported decision involving this rule, In the Matter of Rodriguez (Rev.Dept. 1993) 2 Cal.State Bar Ct.Rptr.480.

This case dealt with a lawyer in a civil suit who wrote two letters to opposing counsel for a transit district, stating that if the matter was not settled, "appropriate action" would be taken "before the district attorney and other named public agencies" to bring public attention to the improper conduct of the transit district’s board, i.e. to generate voter outrage and publicity in order to leverage the civil suit.

Sending a letter to opposing counsel or the other side advising that unless prompt and satisfactory settlement is obtained, the client will be advised to exercise "all available legal remedies" does not violate this rule (COPRAC Op. 1991-124).


Diane Karpman of Los Angeles is a discipline defense lawyer.

[CALBAR JOURNAL] California Bar Journal - November, 1997 [ATTORNEY DISCIPLINE]

Threatening to gain an advantage

by Diane Karpman


You are not permitted to threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. "Civil dispute" has been interpreted broadly to include an existing or potential controversy, whether or not an action has been filed or commenced.

An explicit threat is not required for violation of this rule. Such a threat may be implied or inferred from the surrounding circumstances.

The paradox is that you are permitted actually to file charges that are disciplinary, administrative or criminal; in terms of this rule, it is the threat that is prohibited, not the filing.

The rule developed from a body of case law in which attorneys were disciplined for conduct which could be characterized as extortion.

Lawyers have been disciplined for sending a letter to opposing counsel threatening the intervention of the Department of Savings and Loan and the Attorney General’s office, and sending a copy of the letter to those agencies (Crane v. State Bar (1981) 30 C3d 177, 177 Cal. Rptr.670); for offering to drop already-filed criminal assault and battery charges against a husband in exchange for payment of the wife’s lawyer’s fees (Bluestein v. State Bar (1975) 13 C3d 162, 118 Cal.Rptr. 175); and for threatening to have the client file criminal charges against client’s former employer, unless payment of money was received (Libarian v. State Bar (1952) 38 C2d 328).

There is only one State Bar Court reported decision involving this rule, In the Matter of Rodriguez (Rev.Dept. 1993) 2 Cal.State Bar Ct.Rptr.480.

This case dealt with a lawyer in a civil suit who wrote two letters to opposing counsel for a transit district, stating that if the matter was not settled, "appropriate action" would be taken "before the district attorney and other named public agencies" to bring public attention to the improper conduct of the transit district’s board, i.e. to generate voter outrage and publicity in order to leverage the civil suit.

Sending a letter to opposing counsel or the other side advising that unless prompt and satisfactory settlement is obtained, the client will be advised to exercise "all available legal remedies" does not violate this rule (COPRAC Op. 1991-124).


Diane Karpman of Los Angeles is a discipline defense lawyer.

[CALBAR JOURNAL]