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).