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Prof Responsibility • Fairness
PR#071
Legal Definition
California also forbids a lawyer from threatening to bring disciplinary, administrative
or criminal proceedings to gain an advantage in a civil dispute.
or criminal proceedings to gain an advantage in a civil dispute.
Plain English Explanation
Under the ABA Model Rules, lawyers are prohibited from obstructing evidence, falsifying evidence, knowingly disobeying court rules, making frivolous discovery requests, failing to return inadvertently sent documents, making unsupported claims in court, and improperly contacting represented parties. These rules aim to create a level playing field and promote honest advocacy.
California adopts these ABA rules but adds one more: lawyers must not threaten to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute. This additional rule addresses a specific type of shady behavior that the ABA rules don't explicitly cover.
For example, under ABA rules, a lawyer might say to opposing counsel, "If you don't settle this contract dispute, we'll report your client's tax irregularities to the IRS." While arguably aggressive, this wouldn't necessarily violate ABA rules. However, in California, this statement would violate the additional rule, as it threatens administrative action to gain leverage in a civil matter.
This California-specific rule prevents lawyers from using the threat of official proceedings as a bargaining chip. It ensures that civil disputes are resolved on their merits, rather than through intimidation or the exploitation of unrelated vulnerabilities.
California adopts these ABA rules but adds one more: lawyers must not threaten to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute. This additional rule addresses a specific type of shady behavior that the ABA rules don't explicitly cover.
For example, under ABA rules, a lawyer might say to opposing counsel, "If you don't settle this contract dispute, we'll report your client's tax irregularities to the IRS." While arguably aggressive, this wouldn't necessarily violate ABA rules. However, in California, this statement would violate the additional rule, as it threatens administrative action to gain leverage in a civil matter.
This California-specific rule prevents lawyers from using the threat of official proceedings as a bargaining chip. It ensures that civil disputes are resolved on their merits, rather than through intimidation or the exploitation of unrelated vulnerabilities.
Hypothetical
Hypo 1: Bob represents a plaintiff in a personal injury lawsuit against a large corporation. During settlement negotiations, Bob tells the corporation's lawyer, "If you don't settle this case for $1 million, I'll file a complaint with the State Bar about how you've handled discovery in this case." Result: Under the ABA rules, Bob's statement might be considered aggressive negotiation but wouldn't necessarily violate any specific rule. However, under California's additional rule, Bob has clearly violated his ethical obligations. By threatening to bring disciplinary charges to gain an advantage in a civil dispute, Bob has crossed a line that California explicitly forbids.
Visual Aids
Related Concepts
Under the Duty of Fair Representation, what must a lawyer do if they receive incriminating evidence from their client?
Under the Duty of Fair Representation, when may an attorney request that a person other than their client refrain from voluntarily providing information to another party?
What is the Duty of Fairness to Opposing Party and Counsel?
What is the Duty of Fair Representation?
