MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-18
Is it improper for an attorney to threaten the filing of criminal charges against a person the attorney accuses of blackmail?
You advise that you represent a law firm, one of whose lawyers had ongoing simultaneous, “improper” relationships with 2 clerical employees of the firm for approximately 13 months. You advise that the clerical employees each knew of the lawyer’s involvement with the other clerical employee. You report that the law firm learned of these matters after the fact as a result of reviewing a letter written to one of the clerical employees by the lawyer in question. In that letter, the lawyer accused one of the clerical employees of attempting to blackmail him, quoted passages from the Criminal Law article of the Annotated Code of Maryland, and asserted that he would seek to have criminal charges filed against the employee. In particular, the lawyer advised, in his letter, that his “buddy” was the local State’s Attorney, that he would call his friend and file an application for a Statement of Charges, ostensibly to set a criminal prosecution in motion.
You do not provide details about the apparent blackmail attempt by the clerical employee and do not divulge the entire contents of the lawyer’s letter. You advise that your client, the law firm, believes that the lawyer may have violated the Maryland Lawyers’ Rules of Professional conduct and if so, whether there is an affirmative obligation to report the misconduct to the Attorney Grievance Commission.
From the facts presented by you, it appears that you are questioning the lawyer’s personal conduct rather than his actions with respect to representation of clients or other practice of law. Maryland law clearly establishes that a lawyer may be disciplined for misconduct that is unrelated to the practice of law. For example, in Attorney Grievance Commission of Maryland v. Protokowicz, 329 Md. 252 (1993), a lawyer was sanctioned for assisting a friend in taking personal property of the friend’s estranged wife and killing a cat in a microwave oven and in Attorney Grievance Commission of Maryland v. Painter, 356 Md. 293 (1997), the respondent lawyer was sanctioned for criminal misconduct that included physically abusing his wife and children.
In your inquiry, you indicate that, at the very least, the lawyer might have violated the spirit of the Rules, and cite Paragraph 5 of the Preamble to the Maryland Rules of Professional Conduct, which provides, ” [A] lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” In addition, you make reference to Rule 8.4 which provides:
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer’s honest, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud deceit or misrepresentation;
…
(f) state or imply an ability to influence improperly a government agency, official or to achieve results by means that violate the Maryland Lawyers Rules of Professional Conduct or other law..”
The Committee also refers your attention to Rule 8.3, which provides:
(a) A lawyer who knows that another lawyer has committed a violation of the Maryland Lawyers’ Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
Even if the lawyer’s letter may violate ethical standards set forth in the Rules and thereby subject him/her to disciplinary sanction, another lawyer has no duty to report that lawyer’s violation unless the violation raises a “substantial” question as to lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. See Comment to Rule 8.3; Opinion 89-36. Determining whether the conduct raises a substantial question as to a lawyer’s fitness to practice law requires a judgment call since the Rules and commentary are not more specific.
This Committee has previously considered ethical problems related to letters possibly written to threaten prosecution. In Ethics Opinion 93-15 the Committee reviewed a number of ethics opinions from other states, including New Mexico, Florida and Virginia, before concluding that the language and intent of Rule 8.4 is broad enough to maintain a prohibition against threats of criminal prosecution to obtain an advantage in a civil matter and we see no change in the rules that would cause us to alter our prior opinion. In a more recent opinion, Ethics Opinion 03-16, this Committee reiterated its position in 93-15, and cited ABA Formal Opinion 92-363, which provides that the Rules do not prohibit a lawyer from legitimate use of the possibility of presenting criminal charges against a party to gain relief for a client where the lawyer has a well-founded belief that the charges are warranted by the facts and “the lawyer does not attempt to exert or suggest improper influence over the criminal process.” (Emphasis added)
Your client will have to make the determination as to whether or not the letter was intended to obtain an improper advantage or imply the ability to influence a government official, or whether the conduct was a legitimate effort to fend off a blackmailer.
In the event that your client determines that the letter constituted an improper attempt to imply the ability to influence a government official, your client will then have to determine whether the lawyer’s conduct substantially impinged upon his honesty, trustworthiness or fitness as a lawyer in other respects so as to require disclosure by your client to the Attorney Grievance Commission.