| LEO Num | Topics | Summary | Date |
1388
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| "Advising" an adverse party that a criminal law might have been violated is tantamount to a threat and therefore unethical. | 1/14/1990 |
1646
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| [WITHDRAWN] A former client sued a lawyer for malpractice and also filed a Bar complaint. The former client later non-suited the malpractice action but threatened to bring it again. The former client's lawyer sought a settlement from the defendant lawyer in return for withdrawing the Bar complaint. The defendant lawyer believes that this violates DR 7-104 and must be reported to the Bar, but does not want to violate DR 7-104 (by appearing to use the disciplinary charge to deter the refiling of the malpractice action).The Bar indicated that a lawyer must report another lawyer's misconduct "without any unnecessary delay." Determining if the reporting lawyer's motives are improper "requires a factual case-by-case determination." If the defendant lawyer reports the misconduct while the malpractice claim is pending, the report is "rendered suspect." However, if the reporting lawyer would not be reporting the misconduct "solely to use or threaten the Bar complaint for leverage to settle or conclude the malpractice claim," the lawyer is not required to wait until the malpractice claim is resolved before reporting the violation. | 9/8/1995 |
1645
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| [WITHDRAWN] A lawyer represented a bank in collecting a loan. Under the terms of the loan, the borrower was obligated to pay the lawyer's fees, and asked for an itemized accounting. The Bar held that the lawyer had no duty to itemize fees to a non-client, even if the non-client is paying the fees (although other provisions of the Code apply whether or not the lawyer is acting in a professional capacity for those with whom the lawyer deals). | 9/8/1995 |
1635
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| A company officer (who is also a lawyer) tape records a telephone conversation the officer has with a terminated corporate employee. Because the Code provision prohibiting lawyers from engaging in misrepresentation is "not specifically applicable to activities undertaken in an attorney-client relationship," the lawyer's tape recording was improper even if the officer were acting only as a corporate officer and not as the corporate lawyer.After citing the familiar list of factors for determining whether a lawyer's misconduct must be reported, the Bar concludes that the tape recording without consent "may raise a substantial question" as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. The Bar cautions that the reporting lawyer must be "vigilant" in avoiding such reporting "solely to obtain an advantage in a civil matter." [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.] | 2/7/1995 |
1361
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| A defense lawyer learning that the plaintiff tried to bribe a witness must advise the tribunal of the potential crime and may also advise the Commonwealth's Attorney (the Bar did not decide if failure to report the crime would amount to misprision of a felony under Va. Code § 18.2-461). The lawyer may continue to represent the defendant in the civil case even though the lawyer might be a witness in the resulting criminal matter. Reporting the bribery would itself be unethical only if the lawyer was acting "solely for the purpose of obtaining an advantage in a civil matter." | 6/28/1990 |
ABA-384
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| A lawyer against whom a disciplinary charge has been made does not necessarily have to withdraw from the representation that generated the complaint, and the lawyer may not withdraw without the client's consent if the client would be prejudiced by the withdrawal. | 7/5/1994 |
1555
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| A lawyer for an employer acted improperly in sending a letter to a former employee alleging that the former employee committed perjury herself at a hearing and threatening to seek prosecution. Although it may be premature to determine if the letter was sent "solely to gain an advantage in the civil matter," the lawyer's letter was "suspect as long as there is a possibility that an advantage to the employer would result in a simultaneously pending civil suit." | 10/20/1993 |
0782
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| A lawyer in a divorce case may properly advise the client to start criminal proceedings against the spouse for taking personal property if the facts show that the criminal case was not initiated solely to gain an advantage in the civil divorce case, and the Commonwealth's Attorney did not act improperly in prosecuting. | 4/22/1986 |
1582
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| A lawyer may not ethically send a letter to a client's adversary threatening to "seek assistance through law enforcement and legal avenues," because this alludes to criminal prosecution and apparently was done solely to gain an advantage in a civil matter (the lawyer had represented to the court that the lawyer had no interest in seeing a criminal prosecution begun). The Bar declines to determine if another lawyer learning of the letter must report the lawyer, but indicates that under DR 1-103(A) the other lawyer would have such a duty if the other lawyer has information "to a substantial degree of certainty" of an ethical violation that would raise a substantial question as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. | 3/9/1994 |
1434
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| A lawyer may not threaten to bring criminal charges to gain a civil advantage. A lawyer not a member of the Virginia Bar is not subject to Virginia's disciplinary rules, but the lawyer's conduct "may be of interest to the disciplinary body of the jurisdiction in which he is licensed to practice." [Under Rule 8.5, a non Virginia lawyer is subject to Virginia discipline if providing services in Virginia.] | 10/21/1991 |
0716
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| A lawyer may not threaten to have an arrest warrant issued if the defendant does not pay a civil debt, because the language does not comply with statutory notice language. | 8/30/1985 |
0715
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| A lawyer may not threaten to present criminal charges to obtain an advantage in a civil matter, and may not allude to a possible criminal prosecution when corresponding with a debtor (if the sole purpose it to advance the client's civil claim). [Rule 3.4(h) allows a lawyer to offer advice to the client about the client's rights under the criminal law.] | 8/30/1985 |
0776
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| A lawyer may not warn a debtor about the criminal sanctions that may be awarded under the Virginia Code, because mentioning the criminal sanctions would amount to a threat to bring criminal charges solely to gain an advantage in a civil matter. | 4/3/1986 |
1063
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| A lawyer may properly send a letter threatening criminal and civil action against a trespasser, as long as the letter is designed to stop the trespassing rather than gain an advantage in a civil matter (the lawyer provided such assurances in a letter to the Bar). | 5/23/1988 |
1233
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| A lawyer may set a deadline for an adversary to settle a matter before filing a lawsuit that will include a claim for punitive damages, but may not bring a criminal action solely to gain an advantage in a civil matter. (The Bar has no jurisdiction to determine whether the lawyer would commit the common law crime of misprision of a felony by not reporting the adversary's criminal conduct). | 5/8/1989 |
1621
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| A lawyer may threaten a child support obligor with business/professional license suspension proceedings under Virginia law to induce the obligor to pay delinquent child support, because the suspension proceedings are administrative rather than criminal. | 2/17/1995 |
1736
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| A lawyer may threaten to seek "appropriate legal action" against a nonparty witness for defamation of the lawyer's client if the lawyer has a "well-founded belief that the threatened legal action is warranted," but may not engage in such a tactic if the "threatened legal action is without legal basis in law or fact, and the threatened suit is made merely to harass and intimidate the witness, or influence the witness not to come forward with truthful and relevant information." | 10/20/1999 |
0308
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| A lawyer whose clients have received bad checks may send letters threatening to sue unless the client receives payment plus a reasonable service charge. | 12/12/1978 |
1338
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| A lawyer's groundless accusations of unethical conduct solely to gain an advantage in a civil matter could themselves be unethical. | 4/20/1990 |
ABA-383
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| A lawyer's threat to file a disciplinary complaint against his adversary to gain an advantage in a civil case would violate the Model Rules if: the adversary's conduct required reporting; the misconduct was unrelated to the civil matter; the disciplinary charges are not well-founded in fact or law: or the threat is designed solely to harass. | 7/5/1994 |
1755
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| 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.” | 5/7/2001 |
1569
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| A part-time Commonwealth's Attorney may represent a retailer in suing a delinquent customer if an independent special prosecutor is appointed to investigate or try any related criminal charges, but may not "allude to possible criminal prosecution, when corresponding with a debtor, for the sole purpose of advancing his client's civil claim." | 12/14/1993 |
1018
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| A part-time Commonwealth's Attorney must be careful in criminal prosecutions of defendants related to the lawyer's civil clients, and must also be careful in representing the Commonwealth in related criminal and civil matters, because the ethics code forbids using criminal charges to obtain an advantage in a civil matter. | 1/7/1988 |
1309
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| A threat to seek an advisory opinion from the Bar on an adversary's conduct does not violate the prohibition on threatening a disciplinary action. The Bar cannot determine whether a settlement agreement indicating that each party was to bear its own "costs" precludes the filing of a motion for award of attorneys' fees in a civil rights case, because it would require a factual determination. | 10/19/1990 |
1603
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| Although threatening a motion for sanctions under Rule 11 or its state equivalent does not violate the Code's prohibition on threatening disciplinary action, it may violate the Code's prohibition on advancing a claim unwarranted under existing law or merely for purposes of harassment. | 7/21/1994 |
1036
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| As long as there was a basis for the threatened action, a lawyer may send another lawyer a letter threatening to hold the lawyer personally liable for any damages caused by publication of notice of a trustee's sale. | 2/15/1988 |
1614
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| It is not per se unethical for a lawyer to threaten a criminal prosecution to gain an advantage in a criminal matter (the Bar concludes that the lawyer apparently had a tactical reason for pursuing perjury charges against a witness.) | 2/7/1995 |
ABA-363
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| The Model Rules do not prohibit a lawyer from using or threatening criminal prosecution to gain an advantage for a client in a civil matter as long as: the criminal matter is related to the civil claim; the lawyer has a well-founded belief that the civil claim and the criminal charges are warranted by law and facts; the lawyer does not attempt to exert or suggest improper influence over the criminal process. | 7/6/1992 |
1166
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| Threatening to file a motion for sanctions under Federal Rule 11 or Va. Code § 8.01-271.1 does not violate the prohibition on threatening or filing "disciplinary charges" to gain an advantage in a civil matter. | 10/28/1988 |
0760
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| Threatening to file a motion under Rule 11 does not violate the Code, even if the sole purpose is to induce settlement. | 4/10/1986 |