LEO: Attorney - Threatening Criminal LE Op. 1036
Attorney - Threatening Criminal Charges.
February 15, 1988
You advise that you represented a contractor, and Attorney B represented
the owner of three buildings. The owner had brought two suits against your
client and your client brought one counterclaim against the owner. The
owner had given a deed of trust on one of his buildings, securing one of
the notes on which the contractor had sued. You advised your client to
institute foreclosure on the deed of trust after being faced with numerous
continuances while waiting to get to trial on your client's counterclaim.
Your client decided to foreclose.
After sending the certified notice, you received a letter from counsel
for the owner. In this letter, counsel for the owner informed you that in
addition to the contractor, the owner would hold you "personally liable
for any damage to their business or business' reputation by the
publication of the notice of the trustee's sale."
You wish to know whether or not the owner's attorney violated the
Virginia Code of Professional Responsibility by sending you this letter.
Disciplinary Rule 7-104 states that "A lawyer shall not present,
participate in presenting, or threaten to present criminal or disciplinary
charges solely to obtain an advantage in a civil matter." Assuming that
there is a basis for an action it does not appear that the letter the
owner's attorney sent you violates DR:7-104. However, should no basis
for the threatened action exist, there may then be a violation of DR:7-
102(A)(1). DR:7-102(A)(1) states that a lawyer shall not "file a suit,
initiate criminal charges, assert a position, conduct a defense, delay a
trial or take other action on behalf of his client when he knows or when
it is obvious that such action would merely serve to harass or maliciously
Committee Opinion February 15, 1988