You have presented a hypothetical situation in which an attorney
represents three defendants charged with distribution of cocaine:
two adults who were directly indicted and the third a juvenile who
was charged on a petition in the Juvenile Court.

You indicate that the key witness in all three cases is a convicted
felon who had been working undercover making "buys" for the
Sheriff's Department as the result of a plea agreement made in
another county.

The trial of the juvenile was heard in judge's chambers.  The key
witness was in the witness chair, testifying and showing a
videotape of the drug transaction. You advise that the tape clearly
showed the face of the juvenile defendant.  The attorney asked the
witness whether there had been someone else in the vehicle with him
at the time the tape was made, and he answered "Yes".  The attorney
then asked who it was.  Before an answer could be given to the
question, a discussion ensued about whether the other person, who
turned out to be the girlfriend of the key witness, could and
should be brought to court to testify.

It was generally agreed that she should be brought to court, and
the discussion turned to a date for a continuance.  A date was set,
following which the judge turned to the key witness, who was still
in the witness chair, and asked whether the girlfriend could be
brought to court that day.  The key witness said, "She's not in the
area today," or words to that effect. 

You further indicate that, after the key witness and the attorney
leave the courtroom, the attorney sees the girlfriend in the
parking lot of the courthouse.  The attorney demands that a deputy
arrest the key witness for perjury; however, the deputy tells the
attorney that she can swear out a warrant.  The attorney comes back
into the courtroom and demands that the Commonwealth's Attorney
prosecute the key witness for perjury.  The Commonwealth's Attorney
tells the attorney that she will deal with the situation.  The
attorney then goes to the investigator who supervised the drug
operation and says that she (the attorney) will not swear out a
warrant for perjury if the investigator will persuade the
Commonwealth's Attorney to nolle prosequi the charges against her
client.  The investigator tells the attorney that she must talk to
the Commonwealth's Attorney.

Further, you indicate that the Commonwealth's Attorney researches
the perjury statute, opines that the statement was not material
and, therefore, that it does not constitute perjury. She writes a
letter, stating that opinion, to the attorney.  Before the letter
reaches the attorney, however, the attorney has brought perjury
charges.  The Commonwealth's Attorney then informally asks another
Commonwealth's Attorney to prosecute the matter, and he agrees to
do so.  The attorney sees the second Commonwealth's Attorney at a
function and learns that he does not believe that the statement
constitutes perjury.

When the key witness is arraigned for perjury, the attorney demands
that a third prosecutor be found.  The court contacts a third
Commonwealth's Attorney, who does prosecute.

Although she believes there is no duty to do so, the original
Commonwealth's Attorney requests continuances in the cases in the
Circuit Court involving the key witness, hoping for a quick
resolution to the perjury matter.  After two continuances of the
preliminary hearing in the perjury case, the Commonwealth's
Attorney notifies affected attorney that she plans to go forward
with the cases, but expects to ask on direct about the facts
leading to the perjury charges.

The attorney then requests further continuances of her two Circuit
Court cases so that the perjury matter can be resolved.  The
Commonwealth's Attorney objects and argues her reasons for wanting
to go forward, relating what happened in the juvenile court and the
fact that the attorney brought the perjury charges, but leaving out
the attorney's visit to the investigator.  The court denies the
motion for continuances and says that the attorney ought to
consider whether it is appropriate for her to represent the two
clients under the circumstances.  The judge suggests that the
attorney has acquired an interest in the outcome of the perjury
trial.  An hour later, the attorney comes before the court and says
that she has decided to withdraw from representation of her

Finally, you indicate that the attorney does not withdraw from
representation of the juvenile client; the key witness has his
preliminary hearing, and the court does not certify the perjury
charge, finding that the key witness did not lie. 

You have asked the committee to opine under the facts of the
inquiry, (1) whether an attorney goes beyond the bounds of the law
in representing her client when she brings charges which raise
doubts about the credibility of a prosecution witness and then
attempts to exploit the doubts she has created; and (2) whether it
is unethical to threaten criminal prosecution to gain an advantage
in a criminal case.

The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 7-102(A)(1) which states that a lawyer shall not
file a suit, initiate criminal charges, assert a position, conduct
a defense, delay a trial, or take other action on behalf of his
client when he knows or when it is obvious that such action would
serve merely to harass or maliciously injure another; DR 7-104
which states 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; DRs 7-105(C)(1) and 7-
105(C)(4) which provide, respectively, that in appearing in his
professional capacity before a tribunal, a lawyer shall not state
or allude to any matter that he has no reasonable basis to believe
is relevant to the case or that will not be supported by admissible
evidence and shall not assert his personal opinion as to the
justness of a cause, as to the credibility of a witness, as to the
culpability of a civil litigant, or as to the guilt or innocence of
an accused; but he may argue, on his analysis of the evidence, for
any position or conclusion with respect to the matters stated

The facts presented illustrate the tension between the duty of
zealous advocacy of a client's interest and the duty to wage
advocacy within the bounds of law and the Disciplinary Rules. 
Striking a balance is, EC 7-6 observes, a "perplexing question."

The lawyer, in the facts presented, used a threat of a criminal
warrant as a bargaining chip with the investigator.  The attorney
did not go forward on the claimed perjury until after the
investigator declined to intervene with the Commonwealth's Attorney
for a nolle prosequi of charges against the client.  That timing of
events colors whether the lawyer had a good faith belief that
perjury had been committed.  The appearance is that the lawyer's
interest was tactical rather than redressing a wrong affecting the
judicial process.  Yet tactics, within the bounds of law and the
Disciplinary Rules, are an integral part of zealous advocacy.

The subjective intent of the lawyer cannot be discerned.  In the
facts presented, the Committee is of the opinion that whether the
lawyer exceeded the bounds of law or violated the Disciplinary
Rules in her actions is conjectural and is not established with a
sufficient degree of certainty.

Finally, the committee opines that the plain language of DR 7-104
states that a lawyer shall not threaten criminal prosecution solely
to gain an advantage in a civil matter.  Additional guidance may be
found in EC 7-18, which interprets the use of the criminal process
to gain an advantage in the civil process as a subversion of the
criminal process and an action which tends to diminish public
confidence in the legal system.  Thus, the committee opines that it
is not per se unethical for an attorney to threaten criminal
prosecution to gain an advantage in a criminal case, subject,
however, to the constraints of DR 7-l02(A)(l), DR 7-l05(C)(l) and

[DRs 7-102(A)(1), 7-104, 7-105(C)(1) and (4); ECs 7-6, 7-18]

Committee Opinion
February 7, 1995