Lawyers commonly make threats that would be subject to sanction outside the institutional structure of lawyering and outside of doctrines such as the litigation privilege. Academic analysis of threats and blackmail largely ignores lawyer threats, implicitly positing the legal system as an alternative to problematic threats, rather than as a favored forum for making them. Such analysis implicitly assumes that the law deals adequately with threats by lawyers. It does not. Through doctrines such as the litigation privilege, the law treats lawyer threats laxly. This treatment is justified by two arguments in tension with each other--that threats may avoid litigation and that threats may promote access to justice. Threats may do these things, but they may also squelch legitimate claims and exaggerate the value of unsound or marginal claims. There is no purely logical reason to believe the present rule structures are optimal. They can and should be better tailored. This paper demonstrates these points and offers recommendations for improvement.
Digital USD Citation
McGowan, David, "Lawyer Threats" (2021). Faculty Scholarship. 73.