LEO #1603 THREATENING CRIMINAL OR DISCIPLINARY CHARGES:  THREATENING
          SANCTIONS AGAINST AN ATTORNEY FOR A PROPOSED LAWSUIT

You have presented a hypothetical situation in which Attorney A has
expressed his intention to file a lawsuit, which is well-grounded
in facts and law or a good-faith modification of the law.  In
response to A's [announced] intention, Attorney B has threatened
sanctions.  You state that Attorney B is unaware of any evidence A
may have in support of A's proposed lawsuit. 

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for an attorney to threaten sanctions
against another attorney for a proposed lawsuit without first
inquiring into the facts of the proposed suit, particularly when it
is known to both counsel that a circuit court case shows that A may
have a valid cause of action.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 7-104, which states that a lawyer shall not present,
participate in presenting, or threaten to present criminal or
disciplinary charges solely to obtain an advantage in a civil
matter.
 
The committee has previously opined that even where the sole
purpose is an intent to induce settlement of a pending case which
otherwise would not be forthcoming, a threat to file a motion for
sanctions, under either Rule 11, Federal Rules of Civil Procedure,
or 8.01-271.1, Code of Virginia, is not the same as a threat to
institute disciplinary action as prohibited by DR 7-104.  See LEOs
#760, #1166.  The committee therefore opines that B's threat to
file for sanctions is not a violation of DR 7-104. 

The committee, however, is of the opinion that B has a professional
responsibility to ascertain that a claim has not been made for the
purpose of harassment or malicious injury, but rather has been
formed after reasonable inquiry.  See LEO #1190.  Similarly, the
committee directs your attention to comply with the requirements of
DR 7-l02(A)(2) which prohibit an attorney from knowingly advancing
a claim or defense that is unwarranted under existing law except
under certain circumstances.  If it is determined that B's threat
is undertaken merely for the purpose of harassment or malicious
injury, such conduct would be improper under DR 7-102(A)(1). 
Whether such conduct was undertaken merely for the purpose of
harassment requires a factual determination which is beyond the
purview of this committee.  Such a determination would be made by
the appropriate disciplinary authorities upon the filing of a
complaint.  

[DRs 7-102(A)(1) & (2), 7-104; LEOs #760, 1166, 1190; Code of
Virginia  8.01-271.1; Federal Rules of Civil Procedure, Rule 11]

Committee Opinion
July 21, 1994