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                                         115 N.J.L.J. 96
                                        January 24, 1985


Appointed by the New Jersey Supreme Court


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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