Legal Ethics Opinion #1555

Zealous Representation--Threatening Criminal or Disciplinary
Charges: Letter From Opposing Counsel Alleging Client has
Committed Perjury

You have presented a hypothetical situation in which an attorney
represents a former employee.  The employee alleges that she was
discharged from her job when she demanded that her employer stop
continuously sexually harassing her, although the employer claims
that the employee quit her job.  The matter is heard by the
Virginia Employment Commission (VEC).  The employee also has
filed civil claims with other agencies for damages for sexual

You indicate that the employee prevails before the VEC, both at
the initial hearing and at the appeal.  The employer then appeals
the decision to the next highest level.  Prior to the appeal
being set for hearing, and approximately one week before the date
set for fact-finding by the Commission, the attorney for the
employee receives a letter from the employer's attorney
threatening to charge the employee with perjury.  You indicate
that the letter reads as follows:

     As you know, we have appealed the above-referenced matter to
     the Virginia Employment Commission.  I want to put you on
     notice that we believe your client testified untruthfully on
     several occasions at the prior hearing.  We also believe
     that the decision that was rendered was based on her
     untruthful testimony.  We believe this gives you certain
     obligations under the Virginia Code of Professional
     Responsibility, if you in fact know that (name of client)
     has testified untruthfully.  Please be advised that
     (employer) intends to fully pursue this matter, and seek
     full prosecution for all instances of perjury which occurred
     in this case.

You have asked the committee to opine whether, under the facts of
the inquiry, the sending of the letter, without particulars, and
the subsequent failure to provide particulars when asked,
constitutes a violation of DR 7-l04.  

The appropriate and controlling disciplinary rule relative to
your inquiry is DR 7-l04(A) which 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.

The committee has consistently and repeatedly opined that it is
improper for an attorney to write to counsel for an opposing
party indicating either that a particular action warrants
criminal prosecution or that the attorney will seek criminal
prosecution if the opposing party does not meet the attorney's
demands made on behalf of his client.  See LEOs #7l5, #7l6, #776,

The committee is of the opinion that the sending of the letter
you describe is improper since its reference to "full prosecution
of all perjury claims" constitutes a threat of criminal
prosecution and thus is violative of DR 7-l04(A).  See LEO #l434. 
The committee is of the further opinion, however, that failure to
provide particulars as to the alleged perjury is immaterial to
the question you raise. 

In analyzing the facts you provide, the committee believes that
one must examine the question of whether or not the threat of
criminal prosecution was made solely to gain an advantage in the
civil matter.  Although the answer to this query requires a
factual case-by-case determination, which may be premature during
the pendency of the civil action, the committee is of the view
that, in the facts you present, the employer's attorney's
assistance in threatening, presenting, or prosecuting criminal
charges against the employee is rendered suspect as long as there
is a possibility that an advantage to the employer would result
in the simultaneously pending civil suit.  See LEO #l388.

Committee Opinion
October 20, 1993