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                                             99 N.J.L.J. 715
                                            August 12, 1976


Appointed by the New Jersey Supreme Court


Threatening Criminal
Prosecution to Aid Civil Action

    The inquiring attorney represents a plaintiff in a civil action, and his client believes that various officers and employees of the corporate defendant have committed perjury in answering questions on written interrogatories and oral depositions. The client has requested the inquirer's assistance in pressing criminal charges against these individuals, and the client has also indicated to an attorney, who is the son of one of the individuals involved, that criminal charges will be brought unless the case is settled. The inquirer questions the propriety of assisting in the bring of criminal charges, at least until the civil matter is completed, because of DR 7-105, which reads as follows:
        A lawyer shall not present, participate in presenting, or threaten to present, criminal charges to obtain an improper advantage in a civil matter.

DR 7-105 is a new rule in the sense that it is not based directly upon any particular canon.
    Wise, Legal Ethics (2d ed. 1970) 111, after referring to DR 7-105, states:
        Once more, old canons 15, 22, 29, 30, and 32 would imply that such conduct is reprehensible, but nowhere was there a definite prescription against it.

Drinker, Legal Ethics, 153 (1953), in commenting upon a lawyer's employment of coercive tactics, states that he "may not threaten a criminal action or disciplinary proceedings in order to effect a civil settlement...."
    In its Professional Ethics Opinion 142 (1956), the Committee on Professional Ethics of the Illinois State Bar Association considers:
            whether it is proper for an attorney, in endeavoring to collect a civil debt, to write to the debtor advising him that he has violated the criminal laws of the State in connection with the transaction, and that the attorney will wait a reasonable time to hear from the debtor before talking the matter up with the State's Attorney's Office, followed by another letter from the attorney advising that the debtor's reply has been considered but that the client is still of the opinion that the debtor is subject to the criminal statute and has asked the attorney to inform the debtor that unless the indebtedness is paid the client will consult with the State's Attorney with the thought of having a warrant issued for the arrest of the debtor.

It concludes:

        The Committee is of the opinion that such letters are definitely unprofessional. It is not ethical to attempt to collect a civil debt with a threat of criminal prosecution. (See The People v. Fops, 261 Ill. 576, 578; 7 CJS (Attorney and Client--Sec. 23h, note 62) p. 760; Drinker, Legal Ethics, 1953, p. 153.)

    In In re Cohn, 46 N.J. 202 (1966), an attorney represented the owner of a tavern where a patron fell in front of the tavern and injured herself. The injured woman and her husband sued the tavern. Depositions disclosed that the marriage was not valid. The attorney assisted, cooperated and participated in filing of criminal charges by his client so as to obtain an advantage in the civil suit, viz., to influence the injured woman to discontinue her suit. The court
suspended the attorney for one year.
    In In re Dworkin, 16 N.J. 455 (1954), an attorney had received a claim of $70 against a man on a forged endorsement on a government check. He wrote a letter threatening criminal proceeding unless the same was paid, together with a counsel fee of $100 to be paid to him. As a result of the letter, the debtor paid $170, of which $70 was forwarded to the client. The matter came before the ethics and grievance committee and the Supreme Court suspended the lawyer for one year.
    In In re Krieger, 48 N.J. 186 (1966), an attorney represented a plaintiff in civil litigation and initiated criminal prosecution against a witness for the purpose of achieving favorable result in the civil action. The Court held his conduct unethical and suspended him for three months.
    Even though there was no canon which expressly covered the subject matter now embodied in DR 7-105, there is no question but that it has always been unethical for a lawyer to threaten or to prosecute criminal action in order to effect a civil settlement. We are not inferring that the inquiry before us is of the character of
the cited disciplinary cases. We do want to emphasize the fact that while DR 7-105 is relatively new, the principle it embodies is old.
    In the present inquiry, the lawyer owes a duty to his client and the court to take steps to correct the situation as soon as possible. He should not look the other way while a fraud is committed on the court through the use of perjured testimony during the discovery phase of the litigation. However, he should seek relief through the court in the civil action. He must not, during the pendency of the civil action, threaten criminal action or participate in the filing of criminal proceedings to force a settlement of the civil suit. Such conduct would clearly violate DR 7-105.

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