Attorney represents Employer in the defense of a civil employment matter related to the employment and subsequent discharge of Plaintiff. Employer believes Plaintiff engaged in criminal conduct during employment. Based on information Attorney has learned during discovery, Attorney has reason to believe evidence of Plaintiff’s criminal conduct during employment, which was in the possession of Plaintiff’s counsel, has been destroyed.

Question 1: Is it permissible for Attorney to inform Plaintiff’s counsel that unless Plaintiff dismisses the civil matter or enters into a settlement as proposed by Employer, Attorney will refer Plaintiff’s employment-related conduct to the prosecutor for possible criminal charges?

Answer 1: Attorney’s threat to refer the employment-related conduct of Plaintiff for criminal prosecution would constitute conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d) unless Attorney has actual intent to refer the matter for prosecution if the matter is not dismissed or settled (see Rule 4-4.1); the conduct underlying the alleged criminal offense is related to the civil action and the use of the threat does not constitute a crime (see Rule 4-8.4(b)); Attorney has a non-frivolous, good faith belief based in law and fact that the employment-related conduct of Plaintiff was unlawful (see Rule 4-3.1); and Attorney’s use of the threat would not lack a substantial purpose other than to embarrass, delay, or burden the Plaintiff or another person (see Rule 4-4.4(a)). See also Informal Opinions 990042 and 20010149. Because some jurisdictions consider the use of a threat to file criminal charges to gain leverage in civil litigation to be a violation of the Rules of Professional Conduct regardless of the circumstances, Attorney should use caution if the conduct could be judged by the rules of professional conduct of another jurisdiction. See Rule 4-8.5.

Question 2: In the course of settlement negotiations, may Attorney inform Plaintiff’s counsel that a lawyer’s unlawful destruction of documents with potential evidentiary value is unethical, and unless Plaintiff dismisses the lawsuit or reaches a settlement as proposed by Employer, Employer or Attorney will file a disciplinary complaint or report against Plaintiff’s counsel?

Answer 2: If Attorney has a duty under Rule 4-8.3 to report the conduct of Plaintiff’s counsel to the Office of Chief Disciplinary Counsel, any offer by Attorney to forego the complaint or report would violate Rule 4-8.4(a) as an attempt by Attorney to violate the Rules of Professional Conduct or to do so through the acts of another. Attorney’s threat may violate Rule 4-3.1 if Attorney lacks a well-founded basis for believing Plaintiff’s counsel violated the Rules of Professional Conduct. Attorney’s threat is likely to violate Rule 4-4.4, Respect for Rights of Third Persons, and/or Rule 4-8.4(d), which prohibits conduct prejudicial to the administration of justice, if threatening to file a disciplinary report or complaint in order to extract settlement concessions is likely to be a factor Plaintiff or Plaintiff’s counsel will have to consider in the representation. Finally, a threat which itself constitutes criminal conduct would violate Rule 4-8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Attorney should also be mindful of the Scope paragraph of Rule 4 at [20], which explains that the Rules are to provide guidance for lawyers and a structure for regulating conduct through discipline, but “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.”

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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