Threatening criminal proceedings or complaints
Lawyers should never threaten to make a criminal or regulatory complaint against another person as a way of obtaining an advantage for a client.
It is a breach of Chapter 4, Rule 2 of the Professional ConductHandbook to threaten or advise another person to threaten to lay a criminal or quasi- criminal charge, or to make a complaint to a regulatory authority, for the collateral purpose of enforcing the payment of a civil claim or securing any other civil advantage for a client. It also is a breach of Chapter 11, Rule 15 to threaten to report another lawyer’s past illegal or unprofessional conduct to the Law Society.
The Discipline Committee treats these breaches seriously. Over the past few years, lawyers who have made threats not only failed to secure an advantage for their clients, but in some cases found themselves the subject of a Law Society complaint, even leading to a conduct review or a citation. A few examples of threatening include:
- A lawyer saying he would report opposing counsel to the Law Society for breach of undertaking “if I do not receive the application and draft order for my approval, which we discussed”;
- A lawyer threatening to report an opposing party to immigration authorities as a means of gaining a civil advantage for the lawyer’s client;
- A lawyer advising a notary who had breached an undertaking to pay property taxes to provide proof of payment by a particular date or face a complaint to the notary’s governing body.
It is not improper for a lawyer to simply inform another lawyer that certain conduct, or the conduct of the other lawyer’s client, may amount to a breach of the Handbook or a criminal offence.
Moreover, the footnote to Chapter 11, Rule 15 says that a lawyer can forewarn another lawyer, when an illegality or a violation of a standard of professional responsibility contained in the Handbook has not yet occurred, that the other lawyer will be reported to the Law Society if he or she engages in that illegal or unprofessional conduct. But Rule 15 specifically prohibits a threat to report another lawyer for the latter’s past conduct. This is because there is a risk that the threatening lawyer will use the threat, or the other lawyer will perceive the threat being made, for the purpose of gaining an advantage for a client. The overriding concern is clearly stated in the footnote: “A lawyer must not use the Law Society’s disciplinary machinery to coerce another lawyer into a course of conduct.”
Often lawyers who breach these Handbook provisions may be unfamiliar with the scope of the rules, or do not consider how the language used in a letter or telephone conversation could reasonably be construed as a threat. This is especially true if threatening words were not used. But a lawyer needs to think carefully about whether any communication of an intent to make a complaint would pressure someone into some action. If it appears appropriate to report another person for an illegal act or a regulatory breach, the lawyer should simply make the report, not threaten to do so and not tie the report to any other issue.
If you have any questions about the rules, or about handling a particular situation, please contact Jack Olsen, Staff Lawyer – Ethics at the Law Society at tel. 604 443-5711 or by email to firstname.lastname@example.org.