Some letters from attorneys are crisp, concise, and to the point. They allege you did something negligent. They want a check. If you don’t deliver said check, they will sue you. Linear and algorithmic.

Then you have to analyze your real as well as practical liability.

Were you negligent? Did the patient have a bad outcome even though you performed at the standard of care? How big is the check demanded versus the amount of time you’ll invest defending the case? What will legal fees be if you pay out of pocket? Is the demand more in small-claims territory or one your carrier would address?

Some attorneys believe that just threatening to sue you is insufficient. They really want to squeeze you. They might add a paragraph on the bottom that states if the matter can’t be amicably settled within two weeks, they will file a complaint to the Board of Medicine. One problem just multiplied into two.

Are lawyers allowed to do that? Well, no.

We’ll use California as a prototypical example. Pull out your dusty copy of California Rules of Professional Conduct. These are the ethical tenets California lawyers agree to abide by.

Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges

(a) A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

(b) As used in paragraph (a) of this rule, the term “administrative charges” means the filing or lodging of a complaint with any governmental organization that may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.

(c) As used in this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more persons* under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity.

The lawyer can actually file the Board complaint behind the scenes. That is not prohibited. Even if the complaint does have the incidental effect of obtaining an advantage in a civil dispute. But he cannot threaten to file a complaint to add visible pressure to settle a case. 

An attorney making the threat is subject to disciplinary action, including disbarment.

Going into the time machine, the seminal case addressing this issue was Crane v. State Farm of California 30 Cal.3d 117 (1981). In that case, the Rule was 7-104, which morphed into a later rule 5-100, which morphed into the current rule 3.10. But the gist is the same.

An attorney sent a letter to the opposing side stating that if certain information was not received within five days, suit would be instituted and “the Department of Savings and Loan and the Attorney General’s Office will be requested to assist us in solution.” (Id. at 121.)

A notation on the letter indicated that copies were being sent to a named deputy attorney general and a named commissioner of the Department of Savings and Loan. The California Supreme Court concluded that when the facts were viewed from the perspective of the recipient of the letter “and considered in context,” including the notation that copies of the letter were sent to government agencies, the letter “could quite reasonably be construed as violative of rule 7-104.”

Various Bar Associations in California have disseminated the memo, advising against making threats.

“The import of Crane is that a threat to present charges need not be expressly stated in words of a threatening nature, but may be inferred from the circumstances; and, that the innocent subjective intent of the maker of the statement is not a relevant factor. If the statement can be reasonably interpreted as a threat to present criminal, administrative or disciplinary charges, in the context of a civil dispute, that is sufficient to constitute a violation of Rule 5-100(A).” (Los Angeles County Bar Ass’n Formal Op. No. 469 (1993). See Cal. State Bar Formal Op. No. 1989106; Cal. State Bar Formal Op. No. 198373.)

Following Crane, California ethics opinions have cautioned that even a communication by an attorney to the opposing side mentioning that he or his client will present a criminal, administrative or disciplinary charge against the opposing party or attorney can be interpreted as a threat under rule 5-100.

For example, if an attorney informs opposing counsel that his client intends to file an administrative complaint, “there is a definite risk that such a statement may be interpreted as an implied or veiled threat” prohibited by rule 5-100. (Cal. State Bar Formal Op. No. 198373.)

Does a lawsuit have to be filed for these rules to be applicable? No. The filing of a civil action is not a prerequisite to the applicability of Rule 3.10 or any of its predecessors.

“As used in this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more persons under civil law, whether or not an action has been commenced.”

So, lawyers are within their ethical obligations to threaten non-frivolous litigation. They are within their rights to threaten litigation and incidentally file a Board complaint. They breach their ethical obligations if they threaten litigation and threaten to file a Board complaint if you don’t quickly settle.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.