These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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35-Threatening Criminal and Disciplinary Action

77-Communicating with an Individual Adversary

A lawyer’s letter warning an adversary’s lawyer against ex parte contacts with the lawyer’s client and threatening to “take the matter up with Judge and the Commonwealth’s Attorney” if the ex parte calls continue: (1) violated the first prong of the prohibition on threatening criminal charges “solely to obtain an advantage in a civil matter,” because reference to the Commonwealth’s Attorney “presents a definite threat of criminal prosecution”; (2) did not violate the second prong (that the threat be made “solely to obtain an advantage in a civil matter”), because “the letter does not make the usual demand for payment/settlement by threatening prosecution,” but instead was “meant to stop a certain action” (the ex parte contacts) that was itself improper. The Committee’s conclusion was based on the lawyer’s apparent belief that the adversary’s lawyer (rather than the adversary itself) was initiating the ex parte contacts. “While a party is free on his own initiative to contact the opposing party, a lawyer may not avoid the dictate of Rule 4.2 by directing his client to make contact with the opposing party.”

Copyright 2000, Thomas E. Spahn