Rule 5-100 of the State Bar Rules of Professional Conduct prohibits an attorney from threatening an opposing party with criminal prosecution or professional disciplinary actions to gain an advantage in a civil matter.

This rule is basic ethics law and known by all attorneys. But this rule is frequently violated when emotions dominate an attorney’s analysis of a case, especially when representing friends or family members who have been cheated out of money by the opposing party. Add to the emotional mix the ease and speed with which an attorney can impulsively dispatch a threatening e-mail to the dastardly culprit, and you have a prima facie violation of the rule. Most likely, your letter will come to the Bar’s attention when the opposing party complains to the Bar about your other conduct in the handling of the case that is not a rule violation.

There are some of us who recall the days when you dictated a threatening letter to the party in your recorder. It was transcribed by your secretary. A draft was given to you for editing. Then the final draft was given back to your secretary for finalizing. When you finally received the final draft for signature, a matter of hours or even a day may have elapsed. This gave you a cooling off period to pause, reflect, and recognize the dire consequences of your volatile letter. You then discarded the offending letter and redrafted it to conform to standard legalese.

The speed of e-mail has eliminated this cooling-off period for reflection. Impulsive emotional reactions seem to spawn most e-mails. It is this emotional impulse that can get you in trouble with the State Bar. The advent of e-mails have improved the speed of communication within our profession. But taking the time to reflect on one’s impulses can save you a lot of headaches and time in not having to respond to a State Bar inquiry.

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