Sometimes a client will come to me and want me to threaten someone with criminal prosecution. Usually the conversation goes like this:
PC: “‘Joe’ owes me $50,000.00. I want you to tell him that if he doesn’t pay me I’ll have him arrested for theft, fraud, conspiracy, and whatever else I can think of. That’ll scare him into paying me right away.”
Me: “Sorry, I can’t do that It would be unethical and could be considered extortion and get me (and you) arrested.”
Here’s the answer:
In D.C., Maryland and Virginia, it is unethical to threaten criminal prosecution to obtain an advantage in a civil matter. But what exactly counts as a threat? The prohibition goes beyond mere threats of criminal prosecution. In fact, threatening to report someone to a disciplinary agency (e.g. the Bar) is a violation as well. Here are some examples of prohibited threats:
- Sending a letter to an opposing party, in an attempt to collect a bad check that the party had given to the attorneys’ client, stating that issuing a check with insufficient funds to cover it is a misdemeanor and that the attorneys planned to exercise their rights to file a criminal complaint against the party.
- Sending a letter to a company hired by an opposing party to manage an apartment complex in which the attorney demanded that the company resign, and stated that failure to comply with this demand would result in a request for criminal charges against the company for embezzlement and other appropriate offenses.
- Telling the mother of a child to be adopted that her demand for an additional $3,000 was an attempt at extortion for which she could be prosecuted.
So what can I do? Well, a statement that “all available legal remedies will be pursued” unless satisfactory settlement is promptly forthcoming is not, in itself, ethically improper. Or I can just report him to the authorities.