Ethics Opinion 2005-1

I. Questions

Client employs Lawyer to represent her in bringing a civil action against Professional.
The acts that form the basis of Client's civil action also potentially support an administrative proceeding against Professional's license. The state regulatory agency that regulates Professional maintains a fund to reimburse victims of misconduct committed by those it regulates. To recover from that fund, the state agency must successfully prosecute charges of professional misconduct.

Lawyer advises Client (a) of the existence of the fund and (b) that Client would have to make a complaint against Professional to have any chance of recovering from the fund.

After Lawyer gives this advice to Client, Client contacts Professional and threatens to make a complaint with the state agency and a claim against the fund unless Professional settles Client's claim. This opinion addresses the ethical implications of four factual scenarios which may occur after Lawyer advised Client that a claim may be made against the fund and that a complaint must be filed in order for the claim to he made, and before Client contacted Professional. The factual scenarios considered are as follows:

  1. Lawyer said nothing further to Client
     
  2. Lawyer said to Client: "You are unlikely to recover by making a complaint against Professional, but the possibility of such a complaint may cause her to settle your case on favorable terms However, 1 am prohibited by California Rule of Professional Conduct 5-100 from making such a threat."
     
  3. Lawyer said to Client: "You are unlikely to recover by making a complaint against Professional, but the possibility of such a complaint may cause her to settle your case on favorable terms. Although I am prohibited by California Rule of Professional Conduct 5-100 from making such a threat you are not."
     
  4. After making the statement in Question No. 3, Lawyer discussed with Client what Client should say to Professional with regard to the possible filing of a complaint.

II. Summary

Rule 5-100 of the Rules of Professional Conduct bars attorneys from making threats of criminal or disciplinary action to gain an advantage in a civil action. However, Rule 5-100 does not prevent an attorney from advising a client of actions which may be taken by the client which constitute either criminal prosecution or the filing of administrative or disciplinary charges. Rule 5-100 also does not prevent a party from pursuing a criminal prosecution or filing administrative or disciplinary charges, even where that action could allow Client to gain an advantage in a civil action. if, under the facts presented herein, Lawyer simply advises Client of the existence of the fund and Client's rights to make a complaint against Professional, but says nothing to suggest that Client should threaten Professional with administrative or disciplinary action, the communication between Lawyer and Client could not be found to be made in contemplation that a threat would be communicated by Client to Professional, would constitute proper advice by Lawyer to Client, and would not violate Rule 5-100.

Rule 2-100 of the Rules of Professional Conduct prohibits direct or indirect communications on the matter in dispute between an attorney and a represented party without the consent of the party's counsel. Although there is also no ethical restriction imposed by Rule 2-100 upon an attorney's communications with an unrepresented party, Rule 2-100 prohibits both direct and indirect communications by an attorney with another represented party. A communication that originates with or is directed by the attorney to a represented party will constitute an indirect communication by an attorney subject to Rule 2-100.

The facts assumed in Questions Nos. 1 and 2 do not indicate violations of Rule 2-100, since they do not suggest that any communications will be made by Client or Lawyer to Professional which would violate Rule 2-100 (if Lawyer actually knew that Professional is represented by counsel). Even if the advice provided by Lawyer to Client is subsequently used in a communication by Client to Professional, it also would not violate Rule 2-100 unless it is shown that facts existed which would allow it to be determined that the communication originated with or was initiated indirectly by Lawyer. Since the facts assumed in Questions Nos. 1 and 2 also do not contemplate that a threat will be communicated to Professional, no factual basis exists for a violation of Rule 5-100. However, Questions Nos. 3 and 4 illustrate increasing degrees of involvement which can cause Lawyer to be considered a participant in the communication by Client with Professional, sufficient to constitute a communication by Lawyer which would be violate Rule 2-100 (if Professional is represented by Counsel), as well as a threat which would violate Rule 5-100.

Under existing opinions interpreting Rule 2-100, the facts assumed in Question No. 4 constitute an indirect communication which would violate Rule 2-100 in any case where lawyer has actual knowledge that Professional is represented by counsel For the reasons stated in this opinion, the communication of a threat by Client to Professional under circumstances which would constitute an indirect communication between Lawyer and Professional under Rule 2-100 would also be sufficient to constitute an indirectly communicated threat which would violate Rule 5-100. Although the facts presented by Question No. 3 do not, by themselves, constitute an indirect communication which would fall within Rule 2-100, they could violate both Rule 2-100 and Rule 5-100 if made under circumstances where other facts exist which may suggest to Client that Client should make the threat.

III. Authorities Cited

Cases
Nichols v. Keller (1993) 15 Cal.App.4th 1672

Rules of Professional Conduct
Rule 2- 100. Rules of Professional Conduct of the State Bar of California
Rule 5-100, Rules of Professional Conduct of the State Bar of California

Other Authorities
State Bar Formal Opinion 1983-73
State Bar Formal Opinion 1991-124
State Bar Formal Opinion 1993-131
Los Angeles County Bar Association Formal Opinion 469 (1993)

IV. Analysis

An attorney has a duty to advise a client of the existence of alternative remedies (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1683-1684.) Therefore, in cases in which a recovery is possible from a fund following the filing of an administrative or disciplinary complaint, it is proper for an attorney to advise a client of the existence of the fund and to explain the steps required for the client to recover from the fund. This opinion addresses those circumstances where the attorney has not only advised the client of those theories of alternative recovery, but has taken additional actions which potentially violate either (a) the restrictions imposed upon attorneys by Rule 5-100 upon using threats of criminal, administrative or charges to gain an advantage in a civil action, or (b) the restrictions imposed upon attorneys by Rule 2-100 with respect to communications with represented parties.

  1. Overview of Rule 5-100

    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.

    (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.

    Rule 5-100 prohibits threats of action by the attorney to gain an advantage in a civil dispute; it does not limit an attorney's advice to a client. Therefore, Lawyer's discussion with Client of the fact that such a recovery from the fund would require the filing of a complaint against Professional could not, in itself, violate Rule 5-100. If no threat is made, the actual filing of administrative or disciplinary charges during a civil dispute is also not a violation of Rule 5-100, even if doing so is for the purpose of gaining an advantage in a civil dispute. (See Los Angeles County Bar Association Formal Opinion 469 (1993).)
     
  2. Overview of Rule 2-100

    Rule 2-100 states, in pertinent part:

    While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

    Although Rule 5-100 applies in every instance in which a threat of prosecution of a criminal, administrative or disciplinary charge is communicated by an attorney, Rule 2-100 is limited to communications between attorneys and parties represented by counsel. There is no ban imposed by Rule 2-100 upon an attorney communicating with a party who is not represented by counsel. Rule 2-100 also is not intended to prevent represented parties from communicating with each other. (See Discussion to Rule 2-100.) There is also nothing in Rule 2-100 which prevents an attorney from advising a client that the parties may communicate with each other concerning the matter. (See Discussion to Rule 2-100.)

    Rule 2.100 and its predecessors have a history of being strictly enforced in California to prohibit direct communications between attorneys and represented properties. (See State Bar Formal Opinion 1993-131.) Although Rule 2-100 specifically prohibits both direct and indirect communications, the cases interpreting Rule 2-100 address only direct communications. (Id.) However, the issue of what constitutes an indirect communication has been analyzed in State Bar Formal Opinion 1993-131, which concluded that when the facts show that the content of the communication with the opposing party originates with or is directed by the attorney, it is an indirect communication prohibited by Rule 2-100. Although Opinion 1993-131 requires generally that the facts be examined in each case to determine whether the communication a originated with or was directed by the attorney, it specifically holds that Rule 2-100 prohibits an attorney from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit for conveying to the represented opposing party communications originating with the attorney.
     
  3. Application of Rule 2-100.

    If Professional is represented by counsel, Opinion 1993-131 makes it is improper under Rule 2-100 for Lawyer to discuss with Client statements which may be communicated to Professional. A subsequent communication by Client to Professional based upon such a discussion thus would be an indirect communication between Lawyer and Professional under Rule 2-100, if the content of the communication originated with or was directed by Lawyer, regardless of whether it included a threat of disciplinary action. Therefore, if Professional is represented by counsel, and Lawyer knew that, the facts assumed in Question No. 4 would constitute an indirect communication by Lawyer to Professional in violation of Rule 2-100. On the other hand, if the facts do not show that the communication between Client and Professional originated with or was directed by Lawyer, the communication would not be an indirect communication under Rule 2-100. Since the facts assumed in Questions Nos I md 2 are limited to advice concerning the rights and duties of Lawyer and Client, absent additional facts which show that the statements by Lawyer to Client were intended by Lawyer to be communicated to Professional, they must be considered only as the communication of information between Client and Professional. The Committee thus believes that the facts assumed in Questions Nos. 1 and 2 are not sufficient to trigger application of Rule 2-100.

    Question No. 3 requires a closer analysis of the circumstances to determine whether the communication is an indirect communication by Client to Professional prohibited by Rule 2-100. Read literally, under the facts assumed in Question No. 3, Lawyer has merely advised Client as to what Rules 2-100 and 5-100 provide. The obligation to provide advice concerning the restrictions imposed by Rule 5-100 was recognized by State Bar Formal Opinion 1983-73, which held that, under former Rule 7-104 (the predecessor of current Rule 5-100), when a client independently decides to pursue charges which would violate the rule if initiated by the attorney "the attorney should advise the client that while the Rules of Professional Conduct prohibit the attorney from assisting the client in the matter, the client is free to bring administrative charges attorney from assisting the client in the matter, the client is free to bring administrative charges on his or her own." If Lawyer is prevented from advising Client as to what Rules 2-100 and 5-100 provide, Client may be unaware that she has rights to discuss the matters in issue directly with Professional or otherwise take action, but that limitations are imposed upon Lawyer under those rules.

    Although such advice may be properly rendered by Lawyer to Client, the Committee recognizes that there is an inherent ambiguity in Lawyer's statement to Client in Question No. 3 because it could be interpreted either as a neutral statement of the law or as a suggestion to Client to act. However, to hold that an ambiguity may subject the attorney to discipline may discourage communication of critical information between the attorney and client. (See State Bar Formal Opinions 1983-73 and 1991-124.) Absent other facts or circumstances which suggest to the Client that Lawyer intended to use Client as a conduit to communicate information to Professional, the Committee believes that Lawyer's statement should be presumed to be what it appears - a neutral statement of the law. Therefore. if the facts are limited to those stated in communication under Opinion 1992- 131.
     
  4. Application of Rule 5-100.

    The more difficult issue presented by Questions Nos. 3 and 4 is whether either or both of those circumstances might violate Rule 5-100 if the communication was outside of the scope of Rule 2-100 either because Professional was not represented by counsel or because the threat by Client was made under circumstances where Professional's attorney had consented to communications between Professional and opposing counsel.

    Unlike Rule 2-100, Rule 5-100 applies to all threats communicated by an attorney, without regard to whether the threatened party is represented by counsel. It also is not limited to communications made without consent of opposing counsel, nor it does not attempt to distinguish between those threats which are direct and those threats which are not directly made by the attorney. Rule 5-100 thus prohibits any threat of criminal, disciplinary or administrative charges by an attorney regardless of the factual circumstances in which it is communicated. Although Rule 5-100 does not prevent the client, acting solely on his or her own accord, from making a threat which an attorney could not make, a threat which is made by a client but which originated with or was directed by the attorney can serve the same function as a threat made directly by the attorney. Rule 5-100 therefore should not be read to allow an attorney to use the client as a conduit for making a threat which the attorney could not make. The Committee believes that the analysis which has been applied under Rule 2-100 to determine whether the communication is an "indirect" communication of forbidden information by the attorney should apply equally under Rule 5-100. To hold otherwise, (i.e., that communication of threats prohibited by Rule 5-100 are subject to a different standard than communications that are governed by Rule 2-100) would create the possibility that Rule 5-100 could be applied differently depending upon whether the threat has been communicated to a represented party when communications have been have been consented to by counsel, to a represented party in a communication made without consent of counsel, or to an unrepresented party. Such inconsistency in the application of the Rules of Professional Conduct could weaken the clear mandate of Rule 5-100 that attorneys should be absolutely barred from making threats.

    Therefore. the Committee believes that despite the differences in the interests to be protected by Rules 2-100 and 5-100, the analysis of Opinion 1993-131 as to when the communication by a represented party should be imputed to the attorney should also be determinative of whether a threat should be imputed to the party's attorney as necessary to trigger application of Rule 5-100.

V. Conclusion

If a threat of criminal, administrative or disciplinary charges is communicated by a represented party to another represented party under circumstances where it is deemed an indirect communication by an attorney under Formal Opinion 1993-131, it will also be imputed to the attorney under Rule 5-100. Those circumstances include instances where the facts show that the communication originated with the attorney, or that the client was otherwise used as a conduit for conveying information from the attorney to the opposing party. Furthermore, if a communication by a represented party threatens criminal prosecution, or the filing or a administrative or disciplinary charges to gain an advantage in a civil action under circumstances where Rule 2-100 is not applicable, the communication will also be imputed to the represented party's attorney under Rule 5-10 if, using the standards set forth in Formal Opinion 1993-131, it would have constituted an indirect communication by the attorney.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.