The Florida Bar

Ethics Opinion

Opinion 89-3

March 1, 1989
Advisory ethics opinions are not binding.
An attorney may not threaten criminal prosecution solely to gain advantage in a civil matter or
for purposes of harassment.
Note: When this opinion was written, there was no express prohibition against such
conduct in the Rules of Professional Conduct. The Supreme Court has since re-enacted the
specific prohibition in Rule 4-3.4(g). See In re: Amendments to the Rules Regulating The
Florida Bar, 718 So.2d 1179 (Fla. 1998).

4-3.1; 4-4.4; 4-8.4(c); 4-8.4(d)
EC 7-21; DR 7-105

A member of The Florida Bar presents this question:
Is a member of The Florida Bar subject to disciplinary action for threatening
criminal prosecution in a matter related to a civil action?
DR 7-105 of the former Code of Professional Responsibility provided:
A lawyer shall not present, participate in presenting, or threaten to present
criminal charges solely to obtain an advantage in a civil matter.
The Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar), which
superseded the former Code effective January 1, 1987, do not contain an express counterpart to
DR 7-105. Nevertheless, it is apparent that the Rules of Professional Conduct do prohibit the
type of conduct that was specifically proscribed by DR 7-105. Several rules are particularly
relevant to the topic of threatening criminal prosecution.
Rule 4-3.1 generally prohibits an attorney from bringing a frivolous proceeding. This rule
would prohibit an attorney from filing, or attempting to file, criminal charges that were
Rule 4-4.4 states that in representing a client an attorney “shall not use means that have
no substantial purpose other than to embarrass, delay, or burden a third person.” This rule would
therefore prohibit an attorney from threatening or filing criminal charges if the primary purpose
of doing so was to harass or embarrass someone.
Rule 4-8.4(c) prohibits an attorney from engaging in conduct involving deceit or
misrepresentation. An attorney who deliberately misleads an adverse party into believing that the
attorney can control the filing or dropping of criminal charges would violate this rule.

Rule 4-8.4(d) provides that an attorney shall not “engage in conduct that is prejudicial to
the administration of justice.” This rule would prohibit an attorney from using, attempting to use,
or threatening to use the criminal justice system solely to gain an advantage in a civil matter. The
criminal process was not intended to be used as a means of settling private disputes and is
undermined when it is misused in such a manner. Additionally, the civil process was designed
for the resolution of private claims and the improper threat of criminal charges might deter
someone from pursuing his or her legal rights. See EC 7-21, former Code of Professional
In view of the rules discussed above, the Committee concludes that it would be improper
for an attorney to bring, participate in bringing, or threaten to bring criminal charges against
someone solely to obtain an advantage in a civil matter or if the primary purpose of such action
is harassment. This conclusion recognizes that not every mention of possible criminal
consequences is improper. It is important to distinguish between a permissible notice that is
carefully tailored to serve a legitimate purpose and an improper express or implied threat to bring
criminal charges if the recipient does not comply with certain demands related to a civil claim.
An example of a permissible communication is the notice of worthless check which is prescribed
by statute. See Florida Ethics Opinion 85-3. The motivation and intent of the attorney involved
obviously will be a major factor in determining whether his or her actions are ethically improper.
The Committee believes that such determinations necessarily must be made on a case-by-case
basis, in light of case law and ethics opinions construing former DR 7-105.