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115 N.J.L.J. 96
January 24, 1985
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 551
Revelation of Possible
Criminal Violations in a Civil Matter
In this inquiry, the inquirer has represented the same party
in two contemporaneous suits, each of which also involved a common
defendant. In the course of the first law suit, the inquirer says
that he discovered information concerning conduct of that defendant
which appeared "highly probable" or "possible" as constituting
violations of New Jersey or federal criminal law. The litigation
during which the information was discovered was settled and the
inquirer now asks whether he should be permitted to present the
information to "appropriate authorities" during the pendency of the
ongoing litigation. The inquirer concedes that disclosure of this
information may render it more difficult for the defendant to
secure witnesses and favorable testimony on his behalf, and also
render the defendant's testimony less credible in the pending
litigation.
A question also arises, as it did in In re Krieger, 48 N.J.
186 (1966), of whether the inquirer is the only repository of the
information of the possibly criminal nature of his opponent's
actions which he now feels it to be in the public interest to
disclose. There is the additional question of why he failed to
bring the matter to the court's and his adversary's attention when
it arose during the pendency of the now settled litigation.
The answer to this inquiry is covered by our former Opinion
347, 99 N.J.L.J. 715 (1976) and the cases cited therein,
particularly in the Krieger case, supra.
The authorities mentioned above make it clear that under such
circumstances, this attorney should refrain from making the
disclosures during the pendency of the ongoing litigation.
While DR 7-105 was not adopted or referred to in the new Rules
of Professional Conduct adopted by the Supreme Court on September
10, 1984, it is clear from Opinion 347 and the authorities cited in
that opinion that disapproval of the type of action referred to in
such cases as In re Krieger, supra, was based upon considerations
which were broader and more ancient than the A.B.A. Canons of
Professional Ethics or of the Disciplinary Rules and concern
ethical principles relating to a lawyer's employment of coercive
tactics. Now, these principles may well be encompassed within RPC
4.4 enjoining the use by a lawyer of means which "have no
substantial purpose other than to embarrass, delay, or burden a
third person ..."
We do not think that the Supreme Court, by omitting to
specifically adopt a rule equivalent to DR 7-105 intended to
overrule either Opinion 347, supra, or its own opinions referred to
in that opinion.
The inquirer should, therefore, await the conclusion of the
civil proceedings before initiating action leading to possible
criminal proceedings against his civil opponent, even though the
criminal Statute of Limitations may run in the interim.
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