LEO 1230

LEO: Acquiring an Interest in the Litigation LE Op. 1230

Acquiring an Interest in the Litigation - Conflict of Interest -

Collection Practice: Attorney Filing Criminal Warrant

Against Judgment Debtor and Pursuing Civil Process

Against the Same on Behalf of Client.

May 18, 1989

You have advised that an attorney represented a client in a collection

proceeding in which a payment plan was agreed upon by the judgment debtor

who presented a check to the attorney payable to his firm. The check was

then deposited in the firm's trust account and, after several weeks,

disbursements were made to the client and to the firm. Approximately one

month later, the check was returned for insufficient funds; however, the

firm has not sought to recover the funds disbursed to the client nor has

the debtor made any further payments under the agreement in the civil

case.

You wish to know whether it would be proper for the firm to obtain a

criminal warrant against the debtor for the worthless check tendered to

the firm with the attorney as the complaining witness. If it would be

proper to obtain the criminal warrant, may the attorney continue to pursue

civil process, such as garnishment or levy, in an effort to collect the

balance due on the judgment on behalf of the attorney's client. Finally,

if it would not be proper to obtain a criminal warrant, what recourse

would the firm have for the loss incurred due to the debtor's worthless

check?

The Committee opines that the first and third questions you have

presented in your inquiry are legal questions which are beyond the purview

of the Committee and do not raise any ethical issues for the Committee's

consideration. However, the second question concerning whether the

attorney may continue to pursue civil process on behalf of the client, if

he has or will obtain a criminal warrant against the judgment debtor,

raises a potential ethical dilemma.

Disciplinary Rule 5-101(A) [ DR:5-101] provides that a lawyer shall not

accept employment if the exercise of his independent professional judgment

on behalf of his client may be affected by his own financial, business,

property, or personal interests, except with the consent of his client.

Also, EC:5-2 states that a lawyer shoud carefully refrain from acquiring

a property right or assuming a position that would tend to make his

judgment less protective of the interests of his client. Ethical

Consideration 5-3 [ EC:5-3]further provides that the self-interests of a

lawyer which may affect property of the client may interfere with the

exercise of free judgment on behalf of his client, and if there is a

likelihood of interference that can be foreseen by the lawyer, he should

explain the situation to his client and should decline employment or

withdraw unless his client consents to the continued representation after

full disclosure.

The Committee is of the view that if the attorney, as the complaining

witness, has or will obtain a criminal warrant against the judgment debtor,

the continued representation of the client against the judgment debtor is

improper absent the informed consent of the client after full and adequate

disclosure prior to obtaining the criminal warrant. The committee believes

that the instant case is one that tends to place the self-interests of the

lawyer in conflict with those of the client since both seek to recover a

debt from the same, but limited, source. Hence, the continued

representation is permissible only if the client's informed consent has

been obtained after full and adequate disclosure under the circumstances.

Committee Opinion May 18, 1989

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