January 20, 2012
No Violation In Threatening E-Mail
The Louisiana Hearing Board agreed with a hearing committee and found no ethical violation in a March 3,2008 e-mail sent by the charged attorney to another attorney in a dispute between their respective clients.
The Office of Disciplinary Counsel charged that the e-mail (reprinted in full in at page three the report) violated Rules 8.3(a), 8.4(g) and 8.4(a). You may note that the threatening penultimate paragraph is followed by one with a more conciliatory tone.
The board accepted the hearing committee's credibility determinations regarding the attorney-sender's motive and intent.
The most interesting discussion involves the proper interpretation of Rule 8.4(g). The rule makes it misconduct for an attorney to:
(g) Threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter.
The board notes that the parties disagreed on the interpretation of the "solely" motivated language and notes the absence of a prior case interpreting the word. Nonetheless, the board found other elements of the rule violation not established.
...as an additional note, the Board feels that an attorney should exercise discretion and forethought before attempting to correct the conduct of another attorney with whom the attorney has an adversarial relationship.
My own view (confirmed by any cases I've seen) is the the sole motivation language renders the rule entirely unenforceable in the disciplinary context. (Mike Frisch)
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