Following is the 72nd post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” warning attorneys against threatening to present certain types of charges in order to gain an advantage in a legal matter.
This Rule of Professional Conduct, as revised, is as follows:
Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges
(a) A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
(b) As used in paragraph (a) of this rule, the term “administrative charges” means the filing or lodging of a complaint with any governmental organization that may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.
(c) As used in this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more persons 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.
Found in Chapter 5 (“Advocacy and Representation”) of the CBA’s previous version of the RPC, Rule 5-100 contained almost exactly the same wording as that found in the revised version of the same rule – now in Chapter 3 (“Advocate”) in CBA’s revised version of the RPC, as set forth above. The only minor change is that “… a federal, state, or local governmental entity which may order …” in subdivision (B) now appears as “… any governmental organization that may order …” in subdivision (b).
The American Bar Association (ABA) no longer includes a rule addressing the issues mentioned in CBA’s Rule 3.10. In an online article published by the ABA in October 2008 (“Making Threats,” by Peter H. Geraghty, Director of ETHICSearch), the reason for this omission was explained.
According to the article, the Model Code was withdrawn in 1983 and replaced by the ABA Model Rules of Professional Conduct. The ABA Commission that formulated the Model Rules (Kutak Commission) did not carry forward the DR 7-105 prohibition into the Model Rules. The ABA’s decision to remove the content – the same information found in CBA Rule 3.10 – was based on the Kutak Commission’s position that the then proposed Model Rules provided adequate safeguards against improper threats. The Committee concluded that the Kutak Commission believed DR 7-105(a) was redundant and/or overbroad and that Rules 8.4 (“Misconduct”), 4.4 (“Respect for Rights of Third Persons”), 4.1 (“Truthfulness in Statements to Others,”), and 3.1 (“Meritorious Claims and Contentions”) provided adequate limits on the legitimate uses of threats of criminal prosecution.
Benefit: Generally speaking, the inclusion of this rule in the CBA’s revised RPC serves as a valuable reinforcement of the prohibitions against attorneys threatening to lodge criminal or disciplinary charges in order to gain an advantage in their handling of any legal matter.
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