Legal Ethics Opinion No. 1388
Threatening Disciplinary/Criminal Charges: Attorney Advising
Opposing Counsel That Criminal Conduct May Have Occurred and
Assisting Client to Present Evidence to Commonwealth's Attorney
You have indicated that an attorney's client operates a business
in the District of Columbia, which business includes a
check-cashing service operated on a commission basis. A Virginia
corporation drew checks on a Virginia bank, made payable to a
Maryland corporation and signed by an agent of the Virginia
corporation. After an agent of the Maryland corporation
presented the checks for payment through the client's service and
received cash proceeds, all the checks were dishonored. The
Virginia corporation subsequently executed a confess judgment
promissory note for the full amount of the bad checks, personally
guaranteed by the agent who had presented the checks, in favor of
the client. Civil actions have been filed against the Virginia
corporation and the agent, who are represented by counsel. You
indicate the attorney's belief that the actions of the
corporation and its agent may violate Virginia Code l8.2-l8l,
the "Bad Check Law." Furthermore, you advise that the client
wishes to refer these matters to the appropriate criminal
authorities for investigation. You indicate that it will then be
necessary for the attorney to assist the client in presenting
evidence to the Commonwealth's Attorney, in discussing applicable
law, and in encouraging the Commonwealth or the District of
Columbia authorities to investigate the case. Finally, you
indicate that the attorney has discussed the civil aspects of
this matter with opposing counsel, but has never alluded in any
way to the existence of criminal conduct or the potential for
criminal prosecution. You do advise, however, that there is a
dispute as to whether the client's prior attorney earlier had
alluded indirectly to the potential criminal nature of opposing
parties' conduct.
You have requested that the committee opine as to the propriety
of the attorney's actions in pursuing criminal action against the
corporation and its agent and in attempting to resolve the
criminal and civil matters through settlement. Specifically, you
have requested that the committee consider the attorney's
conduct, prior to his making any criminal complaint, (l) in
advising opposing counsel that criminal conduct may have
occurred, that the client wants to refer the matter for criminal
investigation, and that the client would refrain from such
referral if the bad checks were made good; and (2) in assisting
the client to present evidence to the Commonwealth's Attorney and
encouraging investigation without providing any advance notice to
opposing counsel. Furthermore, you ask the committee to consider
the attorney's conduct, following the filing of criminal charges
against the corporation and agent, (l) in contacting opposing
counsel and stating that the client will attempt to have the
charges dismissed upon payment of the bad checks; and (2) in
negotiating a settlement, initiated by opposing counsel, whereby
the corporation and agent offer payment in exchange for the
client's attempt to dismiss the criminal charges. Finally, you
ask that the committee opine generally as to the meaning of the
term "solely" when used in the context of DR 7-l04, and, based
upon that definition, when it may be permissible for an attorney
representing a client in a civil matter to threaten to present
criminal charges.
The appropriate and controlling disciplinary rule to the issue
you raise is DR 7-l04(A) which prohibits a lawyer from
presenting, participating in presenting, or threatening to
present criminal [or disciplinary] charges solely to obtain an
advantage in a civil matter. Further guidance is found in
Ethical Consideration 7-l8 which advises that threatening to use,
or using, the criminal process to coerce adjustment of private
civil claims or controversies is a subversion of the criminal
process, designed for the protection of society as a whole, and
an impairment of the usefulness of the civil process, designed
for the settlement of disputes between parties. Additionally,
the Ethical Consideration exhorts that "the improper use of
criminal process tends to diminish public confidence in our legal
system."
The committee has earlier opined that it is improper for an
attorney to write to an opposing party indicating either that a
particular action warrants criminal prosecution or that if the
party does not meet the attorney's demands made on behalf of his
client, the attorney will seek criminal prosecution. See LEO
#7l5 [demanding sum for forged check]; LEO #7l6 [demanding that
party reclaim fraudulent check]; LEO #776 [demanding payment on a
bad check]; and LEO #l233 [attorney representing condominium unit
owners "discussing" with developer the criminal aspects of
developer's actions in improperly retaining condominium dues].
Conversely, the committee has opined that it is not improper for
counsel for a criminal victim to seek accord and satisfaction in
exchange for the dismissal of the criminal charge by the
Commonwealth, when the criminal charge is already pending,
independent of any action by the victim's counsel. LEO #547
[emphasis added]. Finally, LEO #l063 indicates that a threat of
criminal prosecution is not improper when it is made in an effort
to stop harassing actions rather than to gain an advantage in a
concomittant civil matter.
The committee is of the opinion that, irrespective of the
client's wishes to refer the matter for criminal investigation
and to forgo such referral if the bad checks were made good, it
would be improper for the attorney to advise opposing counsel
that criminal conduct may have occurred. The committee views
such an allusion to "advising" as tantamount to the threat
proscribed by DR 7-l04. See Crane v. State Bar, 635 P.2d l63,
l65 (Cal. l98l); In re Barrett, 443 A.2d 678, 680 (N.J. l982).
In light of that determination, the client's desires would not
override the attorney's responsibility under DR 7-l02(A)(8) to
refrain from "knowingly engag[ing] in...conduct contrary to a
Disciplinary Rule." See also In re Charles, 6l8 P.2d l28l (Or.
l980). In addition, the committee opines that it would be
similarly improper for the attorney to encourage a criminal
investigation regardless of whether advance notice had been
provided to opposing counsel, since the plain language of DR
7-l04 similarly prohibits the attorney from presenting or
participating in the presentation of criminal charges when the
intent is to gain an advantage in a concomittant civil matter.
The committee is of the opinion, however, that it is not improper
for the attorney to merely report facts of a possible law
violation to the appropriate authorities if the report (l) is
discrete; (2) does not put pressure on the prosecutor to take
action; (3) is not conveyed to the person charged; and (4) does
not, by its timing, suggest a punitive or extortionate intent.
Wolfram, Modern Legal Ethics at 7l7; see also People ex rel.
Gallagher v. Hertz, 608 P.2d 335, 338 (Colo. l979).
In the event that criminal charges have been filed independent of
any action or encouragement by the attorney involved in the civil
matter, the committee believes that the conclusions reached in
LEO #547 would permit the attorney to seek accord and
satisfaction or negotiate a settlement in exchange for the
dismissal of the pending criminal charge.
Although the committee believes that the determination of when
criminal charges are presented or threatened solely to obtain an
advantage in a civil matter requires a factual case-by-case
determination, the committee is of the view that the true
subjective motive may be very difficult to ascertain during the
simultaneous pendency of the civil case. Therefore, the lawyer's
assistance in threatening, presenting or prosecuting the criminal
charges against the opposing party would be rendered suspect as
long as there is a possibility that an advantage could result in
the pending civil suit. Texas Ethics Op. 453 (ll/l3/87). Seealso ABA Informal Op. l427 (August l5, l978). Furthermore, the
committee recognizes that when criminal charges are brought and
dropped upon settlement of a civil case, it may be fair to assume
that they were brought to gain a civil advantage.
In response to your final inquiry, the committee believes that
the intent and the plain language of DR 7-l04 would preclude an
attorney from ever threatening to present criminal charges when
the attorney is representing a client in a civil matter related
to the criminal charges against the potential criminal defendant.
While not considering the legal ramifications of an attorney
threatening to file suit to gain a monetary advantage in a civil
matter, the committee directs your attention to the potential for
such a demand being viewed as malicious prosecution or an
extortion attempt. Robinson v. Fimbel Door Co., 306 A.2d 768
(N.H. l973); Libarian v. State Bar, 239 P.2d 865, 866 (Cal.
l952).
Committee Opinion
January 14, 1991
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