TLIE Top Tip: Threatening a Grievance – Is It Ever a Good Idea?
TLIE Top TipsLitigation and negotiation often get heated as lawyers zealously represent their clients’ interests. Sometimes, one lawyer may come to believe that his opposing counsel crossed an ethical line. That belief might lead the lawyer to threaten to report opposing counsel to the State Bar. Traveling that road, however, exposes the lawyer to a potential rule violation.
Texas Disciplinary Rule of Professional Conduct 4.04(b) prohibits presenting or threatening to present “criminal or disciplinary charges solely to gain an advantage in a civil matter[.]” While the prohibition is limited to instances where the lawyer’s sole purpose is to gain an advantage in the matter for which the lawyer is providing representation, it is difficult to prove otherwise when the parties involved are currently embroiled in litigation, especially one that has become heated and contentious.
Lawyers often struggle with how to balance the prohibition in Rule 4.04(b) with the requirement in Rule 8.03(a) which requires that a lawyer report knowledge that another lawyer has violated a disciplinary rule that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. In this instance, it is best to seek advice from a trusted source on how to proceed. That can be a law firm general counsel, outside ethics counsel, the State Bar of Texas ethics hotline, or the TLIE loss prevention helpline available to TLIE insureds. Professional Ethics Opinion 589 advises that a lawyer’s purpose in reporting another attorney is something that should be evaluated on a case-by-case basis, taking into account all the circumstances. It is better to have a third party who is removed from the situation help guide that evaluation rather than risk a potential rule violation by presenting or threatening the filing of a grievance.
