Legal Ethics Opinion #1569
Conflict of Interest--Multiple Representation--Communication
Withe Adverse Parties Threatening Criminal Prosecution: Part-Time
Commonwealth's Attorney Representing Private Client in Civil
Action Arising Out of Bad Check
You have presented a hypothetical situation in which a part-time
Commonwealth's Attorney, in his capacity as a private attorney,
represents a small local corporation engaged in retail sales.
The owner of the corporation has reported to the Commonwealth's
Attorney that a customer has given him a large check (several
thousand dollars) that has now been returned by the customer's
bank marked "insufficient funds". The corporation/client also
brings a copy of a letter, addressed to the customer, that he has
prepared in an effort to comply with 18.2-183 of the Code of
Virginia, as amended. Because of the amount of the check, the
client desires to insure that all available remedies, both
criminal and civil, are preserved.
You further indicate that the attorney's initial review of the
client's letter reveals that there are some technical
deficiencies that, in his opinion, would result in a failure of
the letter to conform to the above-referenced statute. The
attorney's proposed initial course of action is to (1) make minor
technical adjustments to the client's proposed letter in order
that it will conform to the statutory requirements of 18.2-183,
and (2) prepare a civil warrant in debt to be filed on behalf of
the client in the General District Court. You state that the
client's letter, even after technical suggestions by counsel,
does not contain a specific threat of criminal prosecution but
instead states that failure to make timely payment after receipt
of written notice raises a presumption of the intent to defraud
or knowledge of insufficient funds.
You state that the attorney explains to his client that, as
Commonwealth's Attorney, he will not be able to prosecute any
criminal charges that may arise in the event that his customer
fails to respond to the five-day written notice. You also add
that after consultation with Virginia State Bar staff and review
of various Disciplinary Rules, Ethical Considerations, and prior
Legal Ethics Opinions, the attorney has advised his client that
he may not be able to represent him in the civil action in the
event that a criminal charge is subsequently brought.
You have asked the committee to opine under the facts of the
inquiry, (1) whether the Commonwealth's Attorney may continue to
represent the client if a special prosecutor is appointed in the
criminal matter; (2) whether it is a violation of DR 7-104(A) to
advise a client to make minor technical changes in his proposed
letter to a customer who has delivered to the client a check
drawn on an account with insufficient funds, in order that the
client's letter will conform to the provisions of 18.2-183 of
the Code of Virginia, and (3) whether a Commonwealth's Attorney
may ever advise nonclient citizen/merchants regarding the
technical requirements of
18.2-183.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 5-105(A) and (B) which provide respectively
that a lawyer shall not accept proffered employment or continue
multiple employment if the exercise of his independent
professional judgment in behalf of a client will be or is likely
to be adversely affected by the acceptance of the proffered
employment, except to the extent permitted under DR 5-105(C); DR
5-l05(E) which requires that if a lawyer is required to decline
employment or to withdraw from employment under DR 5-105, no
partner or associate of his or his firm may accept or continue
such employment; DR 7-103(A)(2) and (B) which provide
respectively that a lawyer shall not give advice to a person who
is not represented by counsel, other than the advice to secure
counsel, if the interests of such person are or have a reasonable
possibility of being in conflict with the interests of his client
and that, in dealing with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is
disinterested; and DR 7-104 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 opines relative to your inquiries as follows:
1. The committee is of the view that where a special prosecutor
is appointed by the court, the concerns as to the part-time
Commonwealth Attorney's exercise of professional judgment are
not present. Thus, the committee opines that the
Commonwealth's Attorney may, under DRs 5-105(A) and (E),
represent his client in a civil action against the customer
if an independent special prosecutor is appointed to
investigate or try the criminal charges.
The committee cautions, however, that the Commonwealth's
Attorney may not use his public position to influence, or
attempt to influence, the court to act in favor of himself or
of the client, as prohibited under DR 8-101(A)(2).
2. The committee has previously opined that it is unethical for
counsel to allude to possible criminal prosecution, when
corresponding with a debtor, for the sole purpose of
advancing his client's civil claim. See LEOs #715, #716
The committee is of the opinion that it would not be
improper, under DR 7-104(A), for an attorney to assist his
client in meeting the technical requirements necessary to
protect and preserve a client's rights under the criminal
statute. The committee believes, however, that it would be
unethical for an attorney to assist his client in alluding to
criminal prosecution if such notice were for the sole purpose
of obtaining an advantage for the client in his civil suit.
See LEO #l388.
3. The committee is of the belief that the act of assisting a
nonclient citizen/merchant as to technical requirements of
the statute, without more, "do[es] not amount to 'advice',
and [is] proper as long as the attorney does not engage in
misrepresentation or overreaching." Dolan v. Hickey, 431
N.E. 2d 229, 231 (Mass. 1982).
Since no attorney-client relationship exists between the
Commonwealth's Attorney and the citizenry, it would not be
improper for the Commonwealth's Attorney to advise citizen/merchants regarding the technical requirements of
18.2-183 of the Code of Virginia, provided that the
Commonwealth's Attorney assiduously refrains from
interpreting or misleading the unrepresented individuals as
to the law or facts. See LEO #1464.
Committee Opinion
December 14, 1993
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