ANNOTATIONSSource:
Entire rule and comment amended and adopted June 19, 1997,
effective July 1, 1997.
Editor's note:
Committee comment is retained as it existed prior to 1997 amendments
to this rule.
COMMENT
The civil adjudicative process is primarily designed for the settlement of
disputes between parties, while the criminal, disciplinary and some
administrative processes are designed for the protection of society as a
whole.
For purposes of this rule, a civil matter is a controversy or potential
controversy over rights and duties of two of more persons under the law
whether or not an action has been commenced.
Threatening to use, or using the criminal, administrative or disciplinary
process to coerce adjustment of private civil matters is a subversion of that
process; further, the person against whom the criminal, administrative or
disciplinary process is so misused may be deterred from asserting valid legal
rights and thus the usefulness of the civil process in settling private
disputes is impaired. As in all cases of abuse of judicial process, the
improper use of criminal, administrative or disciplinary process tends to
diminish public confidence in our legal system.
The rule distinguishes between threats to bring criminal, administrative or
disciplinary charges and the actual filing or presentation of such charges.
Threats to file such charges are prohibited if a purpose is to obtain any
advantage in a civil matter while the actual presentation
of such charges is proscribed by this rule only if the sole purpose for
presenting the charges is to obtain an advantage in a civil matter.
This distinction is appropriate because the abuse of the judicial process
is
at its greatest when a threat of filing charges is used as a lever to obtain
an
advantage in a collateral, civil proceeding. This leverage is either
eliminated or greatly reduced when the charge actually is presented.
Moreover, this rule does not prohibit a lawyer from notifying another
person
involved in a civil matter that such person's conduct may violate criminal,
administrative or disciplinary rules or statutes where the notifying lawyer
reasonably believes that such a violation has taken place.
While it may be difficult in certain circumstances to distinguish between a
notification and a threat, public policy is served by allowing a lawyer to
notify another person of a perceived violation without subjecting the
notifying
lawyer to discipline. Many minor violations can be eliminated, rectified or
minimized if there is frank dialogue among participants to a dispute.
Rule 4.5(b) provides a safe harbor for notifications of this type. Other
factors that should be considered to differentiate threats from notifications
in difficult cases include (a) an absence of any suggestion by the notifying
lawyer that he or she could exert any improper influence over the criminal,
administrative or disciplinary process, (b) consideration of whether any
monetary recovery or other relief sought by the notifying lawyer is
reasonably related to the harm suffered by the lawyer's clients. Where no
such
reasonable relation exists, the communication likely will
constitute a proscribed threat. For example, a lawyer violates Rule 4.5 if
the
lawyer threatens to file a charge or complaint of tax fraud against another
party where issues of tax fraud have nothing to do with the dispute. It is
not
a violation of Rule 4.5 for a lawyer to notify another party that the other
person's writing of an insufficient funds check may have criminal as well
as civil ramifications in a civil action for collection of the bad check.
COMMITTEE COMMENT
The Model Rules contain no counterpart to Disciplinary Rule
7-105(A). The Committee believes that the prohibition of DR 7-105(A)
against threatening criminal prosecution in order to obtain an advantage
in civil proceeding should be maintained. Proposed Rule 4.5 is adapted
from California Rule of Professional Conduct 7-104. It broadly applies
to threats of bringing and actually bringing administrative and
disciplinary charges, as well as bringing criminal charges. Note that
while a threat to bring criminal, administrative or disciplinary charges
to obtain any advantage in a civil proceeding is a violation of Rule
4.5, the actual bringing of such charges is subject to discipline only
if it is done solely to obtain an advantage in a civil matter.
The phrase "nor shall a lawyer present or participate in
presenting . . . disciplinary charges solely to obtain an advantage in a
civil matter" (emphasis added), arguably is inconsistent with the
immunity accorded lawyers and others who file requests for investigation
with the Colorado Supreme Court Grievance Committee. See C.R.Civ.P.
241.25(e) "All requests for investigation submitted to the Supreme
Court, the Committee, the Committee Counsel, or the Disciplinary
Counsel, and all complaints filed with the Committee, shall be
absolutely privileged and no lawsuit may be predicated thereon."
Nevertheless, the Committee determined that (1) immunity under
C.R.Civ.P. 241.25(e) does not protect a lawyer from disciplinary
proceedings for filing false complaints with the Grievance Committee;
(2) similarly, violations of proposed Rule 4.5 based on improper
grievance filings would not be immune from discipline under Rule
241.25(e); and (3) even if the immunity provisions could be construed so
broadly, it is Rule 241.25(e) not proposed Rule 4.5 that should be
changed.
The proposed Official Comment to Rule 4.5 is adapted from Ethical
Consideration 7-21 of the current Colorado Code of Professional
Responsibility.
ANNOTATION
Annotator's note.
Since Rule 4.5 is similar to
DR 7-105 as it
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility,
relevant cases construing
that provision have
been included in the annotations to this rule.
Threatening client with criminal prosecution to obtain attorney fees
violates this rule. People v. Farrant, 852 P.2d 452 (Colo. 1993).
Attorney threatened to present disciplinary charges to obtain an
advantage in a civil action where the attorney, in response to a legal
malpractice action, threatened to file a grievance against the attorney filing
the action unless the action was dismissed. People v. Gonzales, 922 P.2d 933 (Colo. 1996).
Applied in People v. Sigley, 951 P.2d 481 (Colo. 1998).
Cases Decided Under Former DR 7-105.
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify disbarment.
People v. Bannister, 814 P.2d 801 (Colo. 1991).
Applied in
People ex rel. Gallagher v. Hertz, 198 Colo. 522, 608 P.2d 335 (1979).
|
