THREATENING TO PRESENT
CRIMINAL CHARGES
By William J. Wernz, Director
Minnesota Office of Lawyers Professional
Responsibility
Reprinted
from Bench & Bar of Minnesota (November 1987)
May an attorney present or
threaten criminal charges to gain advantage in a civil matter? The clear and specific prohibition found in
the old Code of Professional Responsibility does not have a single counterpart
in the Rules of Professional Conduct.
DR 7-105(A) stated,
A lawyer shall not present,
participate in presenting, or threaten to present criminal charges solely to
obtain an advantage in a civil matter.
The rationale for this prohibition
was set forth in Ethical Consideration 7-21 which stated in part,
Threatening to use, or using, the
criminal process to coerce adjustment of private civil claims or controversies
is a subversion of that process; further, the person against whom the criminal
process is so misused may be deterred from asserting his legal rights and thus
the usefulness of the civil process in settling private disputes is
impaired. As in all cases of abuse of
judicial process, the improper use of criminal process tends to diminish public
confidence in the legal system.
The Model Rules of
Professional Responsibility adopted by the American Bar Association did not
contain a specific counterpart to DR 7-105(A).
The drafters of the Model Rules determined that extortionate,
fraudulent, or abusive threats were covered by more general prohibitions in the
Model Rules and thus the express prohibition of former DR 7-105(A) was no
longer necessary.Ftn1 Additionally, DR 7-105(A) was potentially in
conflict with state statutes such as Minn. Stat. §332.50 which requires notice
of a criminal liability be given in order for the party to be eligible to
pursue civil remedies.
The Model Rules have, in
effect, turned the clock back to the period before 1969, when the ABA Model
Code and DR 7-105(A) were promulgated.
The old ABA Canons had no specific counterpart to DR 7-105(A), but
authorities generally agreed with Drinker, Legal Ethics (1953), 153,
that an attorney “may not threaten a criminal action or disciplinary
proceedings in order to effect a civil settlement . . .”
Of the states that adopted
versions of the Model Rules, only two, Connecticut and North Carolina,
specifically carried the substance of DR 7-105(A) forward into their version of
the Model Rules.Ftn2 At least three other states have interpreted
their rules as continuing to include the prohibition notwithstanding the
omission of specific language.
The New Jersey Ethics
Committee in addressing the issue of the absence of DR 7‑105(A) in
the new rules held the conduct was still prohibited. After inquiry of the drafters, the committee found no discussions
concerning intentionally omitting the rule.
The committee determined that such an important ethical principle would
not have been abandoned without discussion.
From the record’s silence, the committee inferred that DR 7-105(A) lived
on.Ftn3
A Wisconsin ethics opinion
indicated that while the new rules did not contain an equivalent provision, the
general prohibition could be found in other more specific prohibitions of the
new rules including: Rules 3.1; 3.3;
3.4; 3.5; 3.8; 4.4; 8.4(b); and 8.4(e).Ftn4 The
Wisconsin opinion indicated that the crucial question would be whether the
criminal charges were brought or threatened primarily as leverage in the civil
matter.
New Mexico’s Bar Advisory
Committee, in confronting the issue of attorneys threatening criminal
prosecution, focused on the reasons for the earlier disciplinary rule.
Because the rationale behind
former Rule 7-105(A) was that threats of criminal prosecution for civil ends
constituted a subversion of the criminal process and might deter the recipient
of a letter from asserting his legal rights, thereby impairing the usefulness
of the civil process, and that such threats tended to diminish public
confidence in the legal system, it would appear that such conduct would be a
violation of new Rule 16-804(D).Ftn5
New Mexico Rule 16-804(D)
prohibits attorneys from engaging in conduct that is prejudicial to the
administration of justice.
Minnesota adopted its version
of the ABA Model Rules effective September 1, 1985, without a specific
counterpart to DR 7-105(A). The
elimination of the express prohibition resulted in a number of inquiries as to
whether such conduct was no longer prohibited.
The Director’s Office
continues to view the threat of criminal prosecution as unprofessional conduct
in certain circumstances. For example,
if the civil and threatened criminal matters are not related, the threat to
seek prosecution would generally not be permissible. Such conduct may constitute a violation of Minn. Stat. §609.27
(1986) (coercion), and thereby violate Rule 8.4(b) and/or (d).Ftn6 On the other hand, statutorily required
notice of criminal liability in connection with civil remedies would be
permissible.Ftn7 Generally, a crucial question will be
whether the threatened criminal charges were clearly unfounded, unrelated, or
otherwise abusive.
In determining whether
threatening or presenting criminal charges in connection with a civil matter
could be considered unethical, attorneys should particularly consider Rule 3.1,
meritorious claims and contentions; Rule 4.4, respect for rights of third
persons; and Rule 8.4(d) forbidding conduct prejudicial to the administration
of justice. If, after consulting these
authorities, questions to proposed conduct remain, attorneys may contact the
Director’s Office for an advisory opinion.
A somewhat related issue is
that of threatening to file an ethics complaint. This issue was discussed in a (March [sic]) December 1983 Bench
& Bar article, which indicated such conduct could subject an attorney
to discipline.
An attorney’s obligation under
Rule 8.3(a) is to report conduct known to the attorney which raises a substantial
question as to the other attorney’s honesty, trustworthiness, or
fitness. If an attorney believes a
substantial question exists concerning an opposing party’s conduct, the
attorney is obligated to report the matter to the Director’s Office. Questions over ethical conduct are not to be
raised as part of a strategy in representing clients. Threatening to file an ethics complaint may constitute conduct
which is prejudicial to the administration of justice and subject the attorney
to discipline.
NOTES
1 Model Rule 8.4 Legal Background Note
(Proposed final draft, May 30, 1981).
2 ABA/BNA Lawyers Manual on Professional
Conduct, 71:601 (1987).
3 New Jersey Advisory Committee on
Professional Ethics. Opinion 595
(December 18, 1986).
4 Wisconsin State Bar Committee on
Professional Ethics, Formal Opinion E-87-5 (July 17, 1987).
5 New Mexico State Bar Advisory Opinions
Committee, Opinion 1987-5.
7 See, e.g., Minn. Stat. §332.50 subd, (3)
(1986).