"substantially related” "when a genuine threat exists that a lawyer"

Is it unethical for a lawyer to threaten criminal charges?

If the lawyer becomes uncivil, or threatens action he knows he cannot take, such as threatening criminal charges, that would be unethical. * This will flag comments for moderators to take action.

Can an attorney use threats against someone to gain advantage?

An attorney cannot use threats against someone to gain an advantage in a civil matter. However, the attorney can warn that person that he is about to file a lawsuit to resolve a matter. * This will flag comments for moderators to take action.

Are threats of prosecution permissible in civil litigation?

The Director has long relied on the ABA position regarding the permissibility of threats of prosecution in related civil litigation and has published articles advising the bar to this effect.

Is it unethical to threaten a lawsuit if I refuse to negotiate?

It is not unethical to threaten a lawsuit if you refuse to negotiate a settlement. You, or whoever is receiving the message should offer to consider any demands, but let the lawyer know you are uncomfortable meeting, if you are.

What is a demand letter?

Demand letters contained veiled and indirect forewarnings that the client would pursue “all remedies allowed by law.”. The elimination of the rule was intended to open the lines of communication with clients as well as opposing parties. It was not intended to foster extortion or abuse of the legal system.

What is the relationship between criminal charges and civil matters?

But let’s go back to the third hypothetical. There is no relationship between the client’s civil claim (equitable distribution of marital property) and the opp osing party’s alleged criminal activities (federal tax evasion). A lawyer who, by threats of criminal prosecution, exploits knowledge of the opposing party’s criminal activity to the advantage of the client in an unrelated matter “furthers no legitimate interest of the justice system, and tends to prejudice its administration." 23 Conduct prejudicial to the administration of justice violates Rule 8.4 (d). The lawyer may also be guilty of extortion—clearly a violation of Rule 8.4 (b) which prohibits criminal conduct that reflects adversely on the lawyer’s trustworthiness, honesty, or fitness. If the unrelated criminal charges are presented, the lawyer may expose the client to an abuse of process claim. There is no confusion here: under no circumstances should a lawyer present or threaten to present criminal charges primarily to gain an advantage in an unrelated civil matter. 24

What is the purpose of Rule 7.5?

Rule 7.5, by prohibiting threats of prosecution only if intended “primarily” to gain an advantage in a civil matter, emphasized the motive of the lawyer acting on behalf of the client. 8 So long as seeking an advantage in a civil matter was one motive, but not the primary motive, the threat of criminal prosecution was not unethical. Roger W. Smith, the renowned North Carolina criminal lawyer, suggests that this emphasis on motive helped the lawyer, and her client, to avoid the crime of extortion and the civil wrong of abuse of process. 9

What rules were eliminated in the ABA?

As observed in ABA Formal Opinion 92-363 , Rules 8.4, 4.4, 4.1, and 3.1, “set the limits on legitimate use of threats of prosecution.” 12

What is Rule 7.5?

Superseded Rule 7.5 was a carryover from the superseded (1975) Code of Professional Responsibility. Code section DR 7-105 (A) specifically prohibited a lawyer from using or threatening prosecution “solely” to gain an advantage in a civil matter. The public policy advanced by the prohibition was stated in Ethical Consideration 7-21:

What is the rule for a lawyer to be truthful?

Rule 4.1 requires a lawyer to be truthful in her communications with third persons. Thus, a lawyer who threatens criminal prosecution for the sole purpose of harassing the other party or who threatens criminal prosecution with no intention of bringing charges is engaging in uneth ical conduct. 13.

What is the tort of abuse of process?

The manual lists the following elements of the tort of abuse of process: (1) a willful act committed by defendant, (2) with bad intent or ulterior motive, (3) after valid process has been issued, (4) whereby the defendant attempts to use the process to accomplish a purpose for which it was not intended.

What is the RPC test?

Colo. RPC 1.9 sets out the “substantial relationship” test: 1 A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. 2 A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client#N#whose interests are materially adverse to that person; and#N#about whom the lawyer had acquired information protected by Rule 1.6 and 1.9 (c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. 3 A lawyer who has formerly represented a client in a matter and whose present or former firm has formerly represented a client in a matter shall not thereafter:#N#use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or#N#reveal information relating to the representation except as these Rules would permit or require with respect to a client.

What is the purpose of the substantive relationship test?

The primary purpose of the “substantial relationship” test is to protect the secrets and confidences of the former client to which the lawyer was privy. In other words, the former client should not be disadvantaged because of his or her lawyer’s new representation. Recent supreme court decisions have also focused on what constitutes ...

Why was the lawyer's representation of Frisco substantially related to the lawyer's representation of Mangeris?

The trial court found that the lawyer’s representation of Frisco was substantially related to the lawyer’s representation of Mangeris because both representations involved controlled substances and because of the “facts and circumstances” that would be at issue in Frisco’s case. Frisco filed a C.A.R. 21 petition.

What is the Supreme Court's rule in reversing the decision of the district court?

In reversing the decision of the district court, the supreme court made the rule absolute.

What happened to Mangeris' bond?

The lawyer’s representation largely consisted of arranging for Mangeris’s continued release on bond. When Mangeris failed to appear at a hearing, his bond was revoked and he was arrested. At that point, other defense counsel began representing Mangeris and the first lawyer withdrew.

Can a lawyer represent a former client?

Lawyers often encounter potential conflicts of interest with former clients. The general rule is that a lawyer may not represent a new client who is materially adverse to a former client when the subject of the representation is “substantially related” to the lawyer’s prior representation. The primary purpose of the “substantial relationship” test ...

Who supplied Frisco with meth?

Moreover, Mangeris testified that he supplied Frisco with product, methamphetamine, and to pay Mangeris, Frisco supplied the funds used to obtain Mangeris ’s release bond. (There was no allegation that Mangeris’s lawyer knew anything of the arrangement.) A grand jury indicted Frisco on numerous charges.