Other Harassing Tactics

Other Harassing Tactics

The first clause of Rule 4.4(a) forbids a lawyer, in representing a client, to use means that have “no substantial purpose other than to embarrass, delay, or burden a third person.”¹ The preceding sections showed how that clause is read: it asks why the lawyer chose a tactic, and a real client-serving aim answers the question however rough the method. Exam fact patterns seldom present the clause in the abstract. They present recurring kinds of conduct, and each kind tests one verb in the clause or one group of people it protects.

Litigation runs on resources that no party owns: court time, witnesses’ working days, opposing counsel’s attention. The people who supply them mostly never chose the dispute, and a nonparty witness has no lawyer in the room to object when they are spent. A tactic that draws on those resources to advance the client’s matter is the ordinary cost of adjudication. A tactic that draws on them for no reason connected to the matter shifts the cost onto bystanders in exchange for nothing, and the clause is aimed at that shift.

Four patterns recur, and one inquiry governs all of them: set the burden aside, then ask whether anything substantial explains the conduct. Delay comes first, because there the clause overlaps with the rules on frivolous positions and on expediting litigation. Burdens on witnesses and parties, threats of criminal prosecution, and demeaning attacks on opposing counsel follow.

Delay Tactics

Delay is the second of the three verbs in the clause, and the clause reaches it only when nothing except postponement or added expense accounts for a step.² The test is the one developed earlier, applied to time. It separates the lawyer who slows a case because slowing it helps the client from the lawyer who slows it because a slower case hurts the other side.

Rule 4.4(a) is rarely the only rule in play when delay is the complaint. Rule 3.1 forbids a lawyer to bring or defend a proceeding, or to assert or controvert an issue in one, without a basis in law and fact that is not frivolous, a standard that includes a good-faith argument for extending, modifying, or reversing existing law.³ Rule 3.2 requires a lawyer to “make reasonable efforts to expedite litigation consistent with the interests of the client.”⁴ Rule 3.4(d) bars a frivolous discovery request in pretrial procedure, and it bars a failure to make a reasonably diligent effort to comply with a legally proper request from the opposing party.⁵ These rules overlap with the delay clause because a baseless claim, a pointless discovery demand, and a needless postponement do the same thing to the other side.

That thing is a transfer of cost. A pending case makes the opponent keep paying lawyers while waiting for relief, and it occupies a court’s calendar. When a step has a real point, such as a stronger record or an available witness, the process gets something back for those costs. When a step has no point beyond the postponement or the bill, the process gets nothing, and the loss falls on someone who never agreed to bear it. The rules therefore ask about the step’s point and not about how long it took, since almost every procedural move takes time. Rule 3.2 builds in the same limit: the duty to expedite runs only “consistent with the interests of the client,” so it does not require a lawyer to drop a legitimate request in order to move faster.⁶

Discovery shows the abusive side of the line most clearly.

A motion for a continuance because the client’s essential expert cannot attend the scheduled trial also pushes the trial date back, but it has a substantial purpose: letting the client present necessary evidence. The postponement is a by-product, and the duty to expedite yields to the client’s interests.⁷ A well-founded motion to dismiss works the same way. It may postpone other steps, yet it has an explanation apart from the postponement. A real client-serving aim defeats the clause, so a lawyer does not violate the rule merely because delay was welcome. The question is whether the step would still have an explanation if the delay were subtracted.

The same measurement applies to pleadings. Federal Rule of Civil Procedure 11 supplies the clearest example because it attaches to the act of filing.

A criminal defense lawyer who makes the government prove every element of its case stands elsewhere. A defendant may put the prosecution to its proof, so holding it to its burden is not a frivolous position, and the delay it causes is not a violation.

An exam answer about a frivolous claim or a stalling tactic should therefore address Rule 3.1 and Rule 11 together. It should treat Rule 4.4(a) as a third, overlapping rule when postponement or expense is the only purpose the facts show. Rule 3.2 belongs in the answer mainly to show that the duty to expedite gives way when the client’s interests call for a real continuance.

Burdening Witnesses and Parties

Witnesses and opposing parties are the third persons a lawyer deals with most directly, and they are the likeliest to feel that a tactic was aimed at them. The Model Rules’ limits on a lawyer in the courtroom already include a ban on means designed only to embarrass or burden a witness or party,⁹ which is the concern the first clause of Rule 4.4(a) states: “no substantial purpose other than to embarrass, delay, or burden a third person.”¹⁰ The test is the purpose test from the preceding sections. A witness’s unhappiness does not decide the matter. What decides it is whether anything in the client’s case explains the conduct once the embarrassment and burden are set aside.

Witnesses present the hardest case, because two reasons pull in opposite directions. A nonparty witness has no stake in the outcome and usually became involved by chance, having happened to see an event or hold a document. The legal process still depends on people in that position to cooperate. A lawyer who makes the experience needlessly miserable imposes costs on someone unconnected to the dispute and discourages the next witness from getting involved. That is the case for protection. The case for restraint is just as strong, because testing a witness is how adversarial litigation finds out what happened. Cross-examination and discovery are uncomfortable by design: they press, they contradict, and they expose inconsistencies in front of other people. A rule that punished discomfort alone would forbid the questioning the process relies on, so the clause reaches only conduct with no substantial legitimate function.

An exam stem that reports a witness who “felt harassed” invites a quick finding of violation. The way to resist is to ask what each line of questioning or each contact was for.

The witness’s reaction describes an effect, and the clause looks at purpose. Rigor, a repeated question after an evasive answer, and open hostility each have a reason in the case, because each is a way of getting at a contested event. A sharp examination that visibly rattles the witness therefore stays inside the boundary the rule leaves open to advocates.

Both scenes leave a witness feeling pressed. What separates them is whether each contact asked for something the matter needed. The first call to the tenant had an obvious purpose, since asking a witness what the witness knows is how a lawyer builds a case. The twelfth call, with nothing left to ask, has none that survives. Repetition alone is not the test, because the deposition lawyer repeated a question and complied. Repetition is evidence: a repeat that follows an unanswered question or adds something new has a reason, while a repeated contact with nothing to ask suggests that burdening the person is the whole aim.

The same steps govern an opposing party, whose position in the case gives the lawyer even more reasons to ask, demand, and press. Two errors recur in answers. One treats the person’s distress, or the examiner’s harshness, as the test. The other assumes that any contact outside the courtroom is proper because no judge is watching. Neither fact decides the question; the clause targets conduct whose only explanation is the burden it imposes.

Threats of Prosecution

Rule 4.4(a) never mentions criminal charges, yet one of the oldest forms of pressure in civil practice is the letter telling the other side to pay or face a criminal complaint. The rule bars means with no substantial purpose other than to embarrass, delay, or burden a third person, and methods of obtaining evidence that violate that person’s legal rights.¹² Because no sentence of the rule addresses threats of prosecution, the question is how such a threat is analyzed at all. Under the Model Rules, the general third-person rule carries it.

The Model Code of Professional Responsibility, which preceded the Model Rules, addressed threats of prosecution in language aimed specifically at that tactic. That narrower language did not carry over, and the Model Rules contain no stand-alone prohibition on threatening criminal charges to gain advantage in a civil matter. The worst cases are therefore caught by Rule 4.4(a) itself: a threat that would amount to extortion, meaning a demand for a concession backed by a threat of criminal consequences, is prohibited. Whether a particular threat reaches that level depends on the criminal law of the governing jurisdiction, so the label the lawyer puts on the letter does not control.

The reason for treating these threats harshly lies in how they apply pressure. An ordinary civil demand tells the other side what the claim is worth and invites a decision on the merits, which the recipient can weigh and answer. A threat of prosecution adds a consequence that has nothing to do with the merits, such as arrest, a record, or public disgrace, and offers to withhold it in return for payment. The target then pays to avoid the criminal outcome and not because the money is owed. The recipient is often unrepresented and has no advocate to point out that the exchange is coercive, which is the situation the rule was written for.

A different letter shows where the line sits. A lawyer for an injured customer writes to the business owner and observes that the conduct alleged in the complaint could also carry criminal exposure. The letter asks for nothing in exchange for staying silent and makes no demand that depends on the criminal consequence.

Both letters mention criminal consequences, and what changed the answer is the link between the consequence and the concession. In the first letter the threatened prosecution is the price of not paying, which is the structure of extortion. In the second the reference to criminal exposure is information, and nothing the recipient does or declines to do alters it. The word “prosecute” appearing in a letter is therefore a poor guide. The better question is whether the lawyer has made the criminal consequence a lever for extracting something.

Two errors recur in answers on this topic. The first is to cite a Model Rule that specifically forbids threats of criminal prosecution in civil matters, because the Model Rules have no such provision. The second is to conclude that the Model Rules’ silence makes every such statement permissible, which ignores that Rule 4.4(a) reaches the extortionate threat and that the governing jurisdiction may have adopted its own rule on the subject. The Model Rules are a model, and states adopt their own versions, so a careful answer states the Model Rules result and then notes that the local rule must be checked.

Incivility Toward Counsel

Rule 4.4(a) shields “a third person” from means that have “no substantial purpose other than to embarrass, delay, or burden” that person, and opposing counsel is one of the people a representation places within a lawyer’s reach.¹⁴ The rule says nothing about courtesy as such, so a demeaning remark to the lawyer across the table is tested the way every other tactic is tested: does anything substantial besides demeaning the target explain it? Personal attacks on opposing counsel usually fail that inquiry, because their content has no bearing on any issue in the dispute.

A letter between lawyers has legitimate functions: it states a position, makes a demand, or proposes a resolution. Each can be performed with the insult deleted, and that is how the insult shows it has no purpose of its own. Ill feeling between clients is a constant of litigation, and a client’s anger gives the lawyer a ready motive to carry it into letters, emails, and hearings. The recipient is poorly placed to answer, since opposing counsel must keep dealing with the author through the whole matter and cannot rebut an insult with a legal argument.

In Barrett v. Virginia State Bar, a lawyer wrote to Karnes, the lawyer his wife had retained in a divorce action. The letters mocked her religious convictions and her university, accused her of dishonoring her faith by taking a wife’s side against a husband, and called her inept.¹⁵ The Virginia Supreme Court observed that the statements did not address the legal issues in the divorce but personally attacked opposing counsel, and Karnes testified that she found them offensive and derogatory.¹⁶ The lawyer argued that Virginia’s harassment rule reaches actions taken in litigation and not words in a letter. The court disagreed and found sufficient evidence that his comments were “other action” meant to harass her in her capacity as counsel.¹⁷ The opinion quotes guidance that ill feeling between clients “should not influence a lawyer’s conduct, attitude or demeanor towards opposing counsel,” that a lawyer “should not make unfair or derogatory personal reference to opposing counsel,” and that “[h]aranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.”¹⁸

Barrett must be handled with care. It applied Virginia’s Rule 3.4(j), which derives from the model rule on which former DR 7-102(A)(1) was based, and it did not apply Model Rule 4.4(a).¹⁹ It is a state-law analogue and not a holding on the Model Rule, and the language quoted above comes from that state-law setting. The opinion reports that a preponderance of authorities interpreting the earlier model rule find harassing ad hominem attacks on opposing counsel prohibited.²⁰ What transfers to Rule 4.4(a) is the method. The court asked whether the statements engaged the legal issues in the case and found that they did not. Under Rule 4.4(a) that observation feeds the purpose inquiry: personal statements that address nothing in the case leave nothing substantial to explain them.

Both letters may leave the recipient equally annoyed. They come out differently because every sentence of the second is aimed at an issue in the case, while the personal passages in the first are aimed at nothing but the lawyer. An exam stem that describes a hostile letter between counsel invites the conclusion that sharp tone is the test, and the stronger answer asks what each statement was for. A letter that pairs a legitimate demand with gratuitous insults should be split in the analysis: the demand has a purpose, and the question is what the personal passages contribute on their own, as the Virginia court asked.