LEO: Threatening Criminal Charges: Part-Time LE Op. 1582
Threatening Criminal Charges: Part-Time Commonwealth's
Attorney Writing Threatening Letter on Behalf of Civil,
Private Client Where Possible Activity Occurred in
March 9, 1994
You have presented a hypothetical situation in which Attorney A serves as
a part-time Commonwealth's Attorney for County X and maintains a separate
civil practice. On behalf of a client, Attorney A wrote a letter to the
client's sister regarding concerns over the handling of the financial
affairs of the client's mother. You state that the sister and her daughter
were taking care of the mother, including [managing] her finances. You
also state the the mother is elderly, with short-term memory deficits.
You state that the letter, which was sent on the letterhead of the firm
with which Attorney A practices, suggests certain steps to allay the
concerns of the client and concludes with the following statement: "If you
do not feel you can honor these requests, he will have no choice but to
seek assistance through law enforcement and legal avenues." You indicate
that any mishandling of funds would have occurred in County Y, which
adjoins County X. Furthermore, neither the mother, sister, nor niece of
the client is aware that A is the Commonwealth's Attorney for County X.
You further indicate that, in the course of representing the mother in a
guardianship proceeding brought by Attorney A on behalf of the son,
Attorney B becomes aware of this letter.
Finally, Attorney A, without being aware that B knows of this letter,
represents to the Circuit Court of County Y that he has no interest in
seeing the sister or niece of his client prosecuted.
You have asked the committee to opine, under the facts of the inquiry,
whether the letter from Attorney A constitutes misconduct raising a
substantial question regarding his fitness to practice law.
The appropriate and controlling Disciplinary Rules related to your
inquiry are DR:7-104(A) which provides 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; and DR:1-103(A)
which states that a lawyer having information that another lawyer has
committed a violation of the Disciplinary Rules that raises a substantial
question as to that lawyer's honesty, trustworthiness, or ability to
practice law in other respects, shall report such information to the
appropriate professional authority.
The committee believes that the inquiry's response requires a two-step
analysis, i.e., (1) is the letter a threat; and (2) if so, is the threat
solely to obtain an advantage in a civil matter.
The committee interprets the letter, referring to seeking assistance
through "law enforcement and legal avenues" as threatening. The committee
has previously opined that it is improper for a lawyer to allude to
possible criminal prosecution, when corresponding with a debtor, for the
sole purpose of advancing a client/creditor's civil claim. See LE Op.
715 and LE Op. 716. The committee has also previously opined that it is
unethical for an attorney to assist his client in alluding to criminal
prosecution if such notice is for the sole purpose of obtaining an
advantage for the client in a civil suit. See LE Op. 1388, LE Op. 1569.
The facts you provide indicate that Attorney A has represented to the
Circuit Court of County Y that he has no interest in seeing the sister or
niece of his client prosecuted. The committee feels it reasonable to
conclude, therefore, that Attorney A sent such a threatening letter to
intimidate the sister into taking the actions requested by Attorney A and
his client. Thus, the committee opines that it is improper, under DR:7-
104(A), for Attorney A to send such a letter to his client's sister.
Having so opined that the letter sent by Attorney A was improper, the
committee again refers you to DR:1-103(A) which describes the lawyer's
obligation to report misconduct of another lawyer. In interpreting that
Rule, the committee has also consistently adopted a two-prong test to be
satisfied before the obligation to report misconduct arises: (1) the
lawyer must have information to a substantial degree of certainty
indicating that another lawyer's conduct has violated one of the
Disciplinary Rules; and (2) that violation must raise a substantial
question as to that lawyer's honesty, trustworthiness, or fitness to
practice law in other respects. /1 See LE Op. 1004. Whether an
attorney's conduct is such that it raises a "substantial question as to
that lawyer's honesty, trustworthiness, or fitness to practice law in
other respects" requires a case-by-case determination which should be made
after consideration of the facts and analysis of the impact on the
offending lawyer's characteristics. See LE Op. 1308 and In re Himmel,
125 Ill.2d 531, 533 N.E.2d 790 (1988).
Committee Opinion March 9, 1994