An explicit threat to file a bar complaint can be an ethical minefield for a lawyer. While it might seem like a strong way to gain an advantage in a legal dispute, it’s often against the very rules lawyers are sworn to uphold. Here’s a look at why this is a sensitive issue in the world of legal ethics. Below is the email sent by the lawyer, Henry Nicholas Goodman:
“Please be advised that I have never been served in this action and am not counsel to any party in this action. I appeared one time as per diem counsel for Ms. Berlin, and she no longer represents any party in this case.
Please immediately correct this false and misleading affidavit of service and remove me from any further pleadings in this case. Again, I do not represent any party in this action and consider this continued motion practice against me personally designed to harass in violation of the New York Rule of Professional Conduct 1.2, New York Judiciary Law § 487, and 22 NYCRR 130-1.1.
If I need to appear or respond to any motion, I will seek sanctions and file a disciplinary complaint.
You are on notice.”
A key point of contention is the lawyer’s statement: “If I need to appear or respond to any motion, I will seek sanctions and file a disciplinary complaint.” This explicit threat of a bar complaint is a sensitive area in legal ethics. New York Rule of Professional Conduct Rule 3.4(e) is often cited in discussions of this topic. This rule prohibits a lawyer from presenting, participating in presenting, or threatening to present a criminal charge solely to obtain an advantage in a civil matter. While a disciplinary complaint is not a criminal charge, the underlying principle of misusing leverage can be a concern. Some legal scholars and ethics committees have interpreted similar threats as violating the spirit of this rule if they are used as a form of coercion rather than as a legitimate response to a genuine ethical violation. The focus is on the motive behind the threat: is it to report genuine misconduct or is it to gain a strategic advantage in litigation?
The Problem With Threatening a Bar Complaint
The New York Rules of Professional Conduct (NYRPC) are clear about the kind of behavior lawyers must avoid. While there isn’t a specific rule that says “you cannot threaten to file a bar complaint,” the spirit of several rules suggests it’s a practice that’s strongly discouraged and ultimately, a violation of the ethical rules.
One of the most relevant rules is NYRPC Rule 3.4(e). This rule prohibits a lawyer from “threatening to present a criminal charge solely to obtain an advantage in a civil matter.” While a disciplinary complaint isn’t a criminal charge, many legal ethics committees and courts view the threat of a bar complaint in a similar light. The reason? The underlying principle is the same: you can’t use the threat of a professional consequence to coerce an opponent into giving you what you want in a civil case.
The central issue isn’t the threat itself, but the motive behind it. Is the lawyer genuinely trying to report a serious ethical violation, or are they using the threat as a tool to gain leverage in a lawsuit? If the motive is to get a settlement, win a motion, or otherwise gain a strategic advantage, the threat can be seen as an abuse of the professional disciplinary process. The disciplinary system is meant to protect the public, not to be a weapon in litigation.
The Ethical Guardrails: When a Threat Becomes Unethical
While a disciplinary threat is not automatically improper, it is not an “unfettered license” to threaten an opposing attorney. The ethical propriety of the threat hinges on two critical factors: the attorney’s good-faith belief and their purpose for making the threat.
First, the threat must be based on a “good-faith belief” that misconduct has actually occurred. A baseless threat made without a sufficient factual or legal foundation could itself be an ethical violation. Such a threat could be construed as engaging in conduct that lacks a substantial purpose other than to “embarrass or harm another lawyer” in violation of Rule 4.4(a).
Second, the threat must not be made for an improper purpose. The Appellate Division, First Department, disciplined an attorney in the case of In re Dimick for making an implied threat to report misconduct to gain an advantage in settlement negotiations. The court found that such conduct could be “prejudicial to the administration of justice” under Rule 8.4(d).
The determination of whether the attorney’s action is unethical hinges on their underlying intent and purpose. While threatening a disciplinary complaint is not automatically unethical in New York, it becomes professional misconduct if the attorney’s motive is judged to be improper or coercive.
If the lawyer’s true motive in issuing the written threat was purely to intimidate, harass, or gain leverage unrelated to remedying the alleged deceit, the action would violate core professional rules. Rule 4.4(a) prohibits a lawyer from using means that serve “no substantial purpose other than to embarrass or harm another lawyer”. If the lawyer’s primary motive was simply to coerce the opposing counsel to cause personal or professional anxiety rather than genuinely compel the correction of the court record, the action would be deemed an abuse of the disciplinary process and rise to the level of unethical conduct.
In such a scenario, as the email sent by the lawyer, the threat is no longer a legitimate means to compel ethical compliance but a tool for coercion, making the action a clear violation of the NYRPC.
The Broader Ethical Context
This type of threat also touches on other ethical considerations, such as the prohibition against frivolous conduct and harassment. A lawyer’s job is to represent their client zealously, but they must do so within the bounds of the law and the rules of professional conduct. Using the threat of a bar complaint to harass an opposing party or counsel is a clear violation of this principle. The court system has mechanisms in place for dealing with misconduct, such as motions for sanctions or motions to dismiss, and lawyers are expected to use those.
Ultimately, a lawyer who threatens to file a bar complaint walks a fine line. If their actions are seen as an attempt to coerce, intimidate, or harass, they could face disciplinary action themselves. On the other hand, if they can show that the threat was a genuine and good-faith effort to report a serious ethical violation, their actions might be defensible. However, the risk of misinterpretation and the potential for being accused of ethical misconduct is why most legal ethics experts advise lawyers to be extremely cautious when making such threats. The best course of action is almost always to file the complaint if one is warranted, but not to use it as a bargaining chip.
Conclusion
The act of threatening a bar complaint is a high-stakes move in legal disputes, fraught with ethical peril. While it might seem like an effective tactic to pressure an opponent, it often blurs the line between legitimate advocacy and improper coercion. The lawyer’s professional conduct is not only governed by the letter of the law but also by its spirit, which emphasizes civility, fairness, and the integrity of the legal system. A disciplinary complaint is intended to be a shield for the public, not a sword in litigation.
Lawyers must weigh the potential for a strategic gain against the significant risk of facing their own disciplinary action. The safest and most ethical path is to use the established legal channels for addressing misconduct, such as motions for sanctions. If a lawyer genuinely believes there has been an ethical breach that warrants disciplinary action, the appropriate course is to file the complaint, not to use the threat of it as a bargaining chip.