Ethics and Professional Liability – Georgia Bar Rule Case Studies

Part 2 – Threat of Criminal Prosecution

At the Attorney Ethics and Professional Liability CLE seminars I conduct for Bar associations and sections, we discuss a series of hypothetical situations to test the audience’s knowledge of both the letter and spirit of the Georgia Bar Rules. Part 1 of this article series discussed an example involving a potential conflict of interest. Part 2 covers another fairly common situation – one party using the threat of criminal prosecution to gain an advantage over the other.

If you can’t make it to a seminar, please join my LinkedIn group to participate in the online discussion – Attorney Ethics and Professional Liability.

Case Study #2 – Can a lawyer, on behalf of a client, threaten criminal prosecution to gain an advantage?

Your client demands an urgent meeting and informs you that he has the evidence that will “break this case wide open.” He informs you that his spouse, who no longer lives in the martial residence per the terms of the Temporary Order, trespassed inside the marital residence over the weekend and that he has video proof of this. Your client wants to hold the threat of potential criminal charges over his spouse’s head in order to get the divorce settled sooner.

Separate the cases, separate yourself

Seminar attendees agreed that this happens frequently, especially in family law matters. One spouse may even manufacture a situation to incriminate the other, desperately trying to gain some leverage over the other spouse. Attendees felt that it was important to separate the issues, and also separate yourself from the criminal allegation. If your client believes that his spouse has done something criminally, recommend that he talk to the District Attorney. Don’t give advice about the criminal matter, and don’t bring it up in your family law case.

I’ve seen a similar approach used in legal malpractice cases as well. The client wants to file a Bar complaint as additional leverage, thinking that the grievance will give him an advantage and help settle the case faster. Threatening to file a Bar complaint may be viewed as a Rule violation, and actually filing a Bar grievance may not help a legal malpractice case. Also, the dismissal of a grievance could negatively impact the malpractice action.

Here is what the Georgia Bar Rules say

As usual, there is no single Bar Rule that covers this situation. Several Bar Rules could apply, including:

• Rule 3.1 Meritorious Claims and Contentions
• Rule 3.4 Fairness to Opposing Party and Counsel
• Rule 4.1 Truthfulness in Statements to Others

You certainly can’t bring a claim or contention that has no merit. But even if this was a bonafide situation, it’s still wrong to use it in a way to harass the other party or abuse the legal process. Here again, you may find that pushing a claim with little to no merit can’t be used against the other spouse, but it later may be used against you!

The Bar Rules here are broadly applied in these situations. Although the Rules mention criminal matters, even quasi-criminal or compliance allegations may be considered Rule violations if used improperly. For example, a slanderous Facebook post or threat of a Bar complaint may even apply. Do your client and yourself a favor. Avoid this land mine or it may explode.

Every situation is unique. Analyze the Rules and Formal Advisory Opinions. Seek qualified counsel

These are just hypothetical discussions, covering a variety of Bar Rules at a very general level. If you would like more information regarding a specific situation, please consult the Bar Rules, call the Ethics hotline, or retain counsel experienced with these issues for an opinion. If you are interested in attending a Legal Ethics and Professional Liability seminar or hosting one for your local Bar Association or section, please let me know.

Douglas Chandler