Demand Letters Can’t Threaten Charges, Illinois Bar Says

An Illinois lawyer who sent a demand letter to a client’s employer to try to settle a civil claim can’t use the threat of a criminal prosecution to gain an advantage, the state bar advised.

But it’s O.K. to say that an employer may be subject to prosecution as long as lawyers don’t insert themselves into that scenario, the Illinois State Bar Association said.

“A demand letter should be limited to the civil matter,” it noted.

Under state ethics rule 8.4(g), lawyers can’t “present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter,” the bar said.

It pointed out that the state rule differs from the American Bar Association’s model rule, which excludes the prohibition against threatening criminal prosecution.

Illinois lawyers have been disciplined for such threats, but not all references to criminal law are violations of the rule, it pointed out.

Two actions are necessary to find a violation, the bar said. These include a clear threat to present criminal charges, communication to the intended target of the prosecution, and a clear connection between the threat and a purpose of gaining an advantage in a civil matter.

In the case here, the lawyer can refer in her letter to the relevant law, which has a civil and criminal component, and point out that there could be criminal liability, the bar said. But she can’t threaten prosecution or agree to forgo it to gain an advantage, it said.

The opinion is Ill. State Bar Ass’n Ethics Opinion, No. 20-03, May 2020.