Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is it ethically proper for counsel retained by a client in a civil matter to send a letter to the opposing side stating that unless a prompt and satisfactory settlement is reached "all available legal remedies will be pursued?"
A statement that "all available legal remedies will be pursued" unless satisfactory settlement is promptly forthcoming is not, in itself, ethically improper.
Rule 5-100 of the Rules of Professional Conduct of the State Bar of California.
An attorney is retained by a client to prosecute a civil dispute. The nature of the dispute can be interpreted as also resulting in possible criminal or administrative action. The attorney wishes to send a letter to opposing side which will state that unless a satisfactory settlement of the matter is reached promptly "all available legal remedies will be pursued." If the opposing individual is represented, the letter will be sent to opposing counsel. If unrepresented, the letter will be sent directly to that individual.
The relevant subsections of Rule of Professional Conduct 5-100 state:
(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
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(C) As used in paragraph (A) of this rule, the term "civil dispute" means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state or local governmental entity.
The Discussion section to the rule ". . . makes clear that the rule is applicable prior to the formal filing of a civil action."
Former California Rule of Professional Conduct 7-1041 tracks, almost exactly, present California rule 5-100. American Bar Association Model Code of Professional Responsibility DR 7-105(A)2 is also analogous to the California rule. However, the more recent American Bar Association Model Rules of Professional Conduct, adopted by the American Bar Association House of Delegates in 1983, do not contain provisions proscribing the conduct prohibited by California rule 5-100 and American Bar Association Model Code of Professional Responsibility DR 7-105(A).
The violation of rule 5-100 is to " . . . threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." Reported cases of attorney discipline concerning allegations of violation of former rule 7-104 involve overt threats made to coerce payment to settle a dispute. (Libarian v. State Bar (1952) 38 Cal.2d 328, 329 [239 P.2d 865]; Bluestein v. State Bar (1974) 13 Cal.3d 162, 167 [118 Cal.Rptr. 175]; Crane v. State Bar (1981) 30 Cal.3d 117, 121 [177 Cal.Rptr. 670].) For example, threatening to file a "criminal complaint" to obtain a civil advantage is improper (Libarian v. State Bar, supra, 38 Cal.2d at p. 329; Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 895 [136 Cal.Rptr. 321].)
The meaning of the proposed language that "all available legal remedies will be pursued" unless a satisfactory settlement is promptly forthcoming, is ambiguous. This language, alone, is not an overt threat to present criminal or administrative charges to obtain an advantage in the civil dispute. For example, the proposed statement could imply that absent prompt settlement, the writer will aggressively prosecute the civil matter to its conclusion. Thus, to interpret the meaning of the letter as a threat in violation of rule 5-100 would have a chilling effect on the legitimate effort to promptly settle the civil dispute. This Committee is unwilling to interpret ambiguous language made in attempts to settle civil disputes as violations of rule 5-100. (See however, State Bar Formal Opinion No. 1989-106 which states in its Digest: "An offer to dismiss a criminal prosecution may not be conditioned on a release from civil liability because that practice constitutes a threat to obtain an advantage in a civil dispute in violation of the Rules of Professional Conduct.") This Committee is of the opinion that the proposed statement is not, in itself, ethically improper.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charges with regulatory responsibilities of any member of the State Bar.
A member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action nor shall he present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.
(A) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
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