LEO: Threatening Criminal Charges to Obtain LE Op. 1063
Threatening Criminal Charges to Obtain Advantage in a Civil
May 23, 1988
You advise that you represent a client who has been harassed and
embarrassed by another individual. Your client has suffered mental anguish
as a result of this other individual's public accusations and threats.
This individual has repeatedly trespassed on your client's private
property after being forbidden to do so both orally and in writing by your
client. You have drafted a letter on behalf of your client to be sent to
this individual threatening the individual with criminal prosecution
should this individual continue to trespass on your client's property and
to defame your client's character.
You wish to know whether or not this letter violates DR:7-104 of the
Code of Professional Responsibility.
DR:7-104 states that "a lawyer shall not present, participate in
presenting, or threaten to present criminal or disciplinary charges solely
to obtain advantage in a civil matter."
You assure the Committee that there is no lawsuit pending, nor is the
client (or the attorney on behalf of the client) seeking monetary payment
by way of damages or settlement. However, you state in the letter you
drafted to the individual harassing your client that "I represent X who
has retained me to take action against you for defamation of character,
intentional infliction of emotional stress and violation of the criminal
statutes of the Commonwealth of Virginia." The letter goes on to say that "
... the purpose of this letter is to put you on notice of the nature and
extent of your outrageous conduct toward him ...."
The letter contains a list of criminal code sections which have allegedly
been violated, including citations to the maximum penalties for each. You
advise in the letter that you have directed your client to secure a
warrant for the individual's arrest should the individual violate any of
the criminal prohibitions. You also state that "if you fail to respect
these prohibitions, then in addition to such criminal penalties as the law
may impose, I will commence an action against you for compensatory and
Based upon your statements, the Committee opines that you are threatening
criminal prosecution in the civil matter. However, the Committee, based
upon your assertions, believes that you did not write the letter to gain
an advantage in a civil matter, but to stop the harassing actions. When it
appears that a letter was sent to stop a certain action rather than to
gain an advantage in a civil matter, there is no violation of DR:7-104.
The Committee bases its opinion on the facts of your letter. Should the
letter be sent to gain an advantage in the civil matter, there would be a
violation of DR:7-104.
Committee Opinion May 23, 1988
See also LE Op. 1361, and LE Op. 1388.