Putting aside the strategic wisdom and efficacy of a threat, when is a threat unethical?
The Indiana Supreme Court’s recent decision in In re Stout, (No. 20S-DI-719 (Ind. Feb. 3, 2022) provides a good starting point for answering the question. Stout represented the respondent to a petition for a protective order (petitioner had had a relationship with respondent). During the deposition of the petitioner (unrepresented), Stout displayed a number of intimate photographs that the petitioner had sent to respondent during their relationship, asking petitioner if she still intended to pursue the petition for a protective order or whether there was a “better way” for her to proceed other than be “exposed in court.” Petitioner responded that she wanted to dismiss the case. Stout told the petitioner how she could dismiss the case, which she did immediately. In administering a 90-day sanction, the Indiana Supreme Court stated: “Respondent’s deception . . . was part of an intentional and purposeful plan he devised to coerce and bully the petitioner into dismissing her case under threat of having her intimate photos exposed.” This is correct: A threat involving misrepresentation or deception would likely result in professional discipline. However, the converse is not necessarily correct: merely because the threat does not involve misrepresentation or deceit does not mean that the threat is ethically proper. In jurisdictions that have a rule like South Carolina Rule of Professional Conduct 4.5 provides (“A lawyer shall not present, participate in presenting, or threaten to present criminal or professional disciplinary charges solely to obtain an advantage in a civil matter.”) the threat of criminal prosecution or of an ethics complaint is unethical. In In re Yarborough, 327 S.C. 161, 488 S.E.2d 871 (1997), respondent wrote his client a letter threatening to proceed criminally against her unless she paid him for rental car fees that he had paid on her behalf in connection with a wreck case. Also, it is important to recognize that in jurisdictions that have an oath of civility (like South Carolina), communications with opposing counsel or opposing parties may be improper even if they do not rise to the level of threats of misrepresentation. In In re Anonymous Member of the South Carolina Bar, 392 S.C. 328, 709 S.E.2d 633 (2011), the court found that a lawyer violated the civility oath when the lawyer wrote an email to opposing counsel in a domestic case in which he said that he had heard that opposing counsel’s teenage daughter, who had nothing to do with the domestic case, had been detained for buying controlled substances and went on to claim that this conduct was far worse than the allegations against his client. The supreme court administered a private reprimand but warned the bar that future conduct of this type could result in a public sanction.
In contrast there are many express or implied threats that would not be improper. For example, an express threat to file a lawsuit unless the opposing party agrees to a settlement offer made by the lawyer making the threat would not generally be improper.
Read more in my Ethics Watch, South Carolina Lawyer, March 2022 (https://mydigitalpublication.com/publication/?m=18928&i=739401&p=16&ver=html5)
