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                                         123 N.J.L.J. 991
                                        April 20, 1989

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 626

Revelation of Possible
Criminal Violation in
Solicitation of Business for Client
    
    This inquiry asks us to rule on the propriety of an attorney sending a letter on behalf of a client inviting the recipient to subscribe to the client's cable television service into which the recipient has tapped without contract or payment. The letter in question would advise the recipient that the acquisition or use of said service without payment may subject the individual to a conviction under N.J.S.A. 2C:20-8(e), which is punishable by up to six months in jail and a fine of up to $1,000.00.
    This Committee will not render opinions on the form and content of proposed correspondence. However, it will address questions of propriety in the practice of law.
    The following questions have been raised:
        (1)    Is reference to a possible conviction of a criminal offense an improper coercive means of securing a benefit for one's client, RPC 1.2(d); prejudicial to the administration of justice, RPC 8.4(d); or the use of a false statement or failure to disclose a material fact to a third person, RPC 4.1(a)(1) and (2)?

        (2)    Does such a letter constitute a means to embarrass or burden a third person in violation of RPC 4.4 or to obtain an improper advantage for one's client in a civil matter? See Opinion 551, 115 N.J.L.J. 96 (1985).

    Where a "claim letter" of this nature states facts accurately, there cannot be a violation of RPC 4.1(a) or RPC 8.4(c) or (d). Assuming the facts have been stated accurately, no "improper" advantage is being sought. The client asks only for his proper due under quantum meruit principles of ancient respect. Consequently, there is also no impropriety under RPC 1.2(d).
    We are mindful of the need to protect the public from unreasonable and oppressive conduct in the pursuit of lawful claims. We also reiterate that the principles applied in our Opinion 347, 99 N.J.L.J. 715 (1976) and Opinion 551, supra., remain viable.
    When a "claim letter" makes the observation that the conduct of the third party may result in a criminal conviction, and there is no threat to disclose the alleged crime to the public authority, the communication does not go far enough to constitute an effort to embarrass. See Opinion 551, supra.

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