Can an Attorney Threaten a Civil Lawsuit To Get an Unresponsive Opponent's Attention?

Does one catch more flies with honey? Perhaps. But the stakes in business and civil litigation are much higher than flycatching, and in some cases, settling a claim may require brandishing "a big stick" or threatening a lawsuit.

When does the threat of litigating a matter need something more than "just a letter"? Here, we will explore the use and justification for attaching a draft of a Complaint to a demand letter to let your adversary know you mean business.

The New York State Bar Association issued an opinion on the subject (Opinion No. 1228 (08/30/2021), based on a hypothetical case in which an attorney represents a client with a potential civil claim against a business. Previous demand letters sent to the company generated no response. Nor did phone calls to the owner. Hoping to provoke a reply, the attorney proposes drafting a Complaint and sending it to the company and business owner along with a deadline by which they must settle or face the attached lawsuit. The attorney does not file the Complaint but intimates that failure to settle will prompt its filing—so becoming public record.