118 N.J.L.J. 875
December 18, 1986
Collection Letter Threatening
to make Criminal Complaint
This inquiry presents a fact pattern similar to that dealt
with in our former Opinion 473, 107 N.J.L.J. 137 (1981), which in
turn was controlled by our Opinion 347, 99 N.J.L.J. 715 (1976).
The inquirer contends that these opinions should be overruled because DR 7-105 was not specifically adopted by the Supreme Court as part of the Rules of Professional Conduct (RPC 1.1, et seq., adopted effective September 10, 1984).
The question is thus squarely presented of whether the principles set forth in the former DR 7-105, and as confirmed in the cited opinions and authorities cited therein, continue to be effective in New Jersey. As set forth in that disciplinary rule, the principle is 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.
Our conclusion is that this principle continues in effect in New Jersey, notwithstanding that it was not explicitly adopted as a portion of the Rules of Professional Conduct.
In reaching this conclusion, we have made inquiry of members of the ABA Commission which formulated the ABA model rules of professional conduct, the Supreme Court Committee on Model Rules of Professional Conduct ("the Debevoise Committee") and the staff of the New Jersey Supreme Court.
From this inquiry, it appears that the ABA Commission did intentionally discard DR 7-105, but did not expressly set forth such action in its report, or explain the reasons for it.
The fact that this rule was not included in the ABA Model Rules of Professional Conduct was noted by one member of the Debevoise Committee early in the proceedings of the committee, but the committee at no meeting ever focused upon or discussed either the fact of the non-adoption of this rule, or any rationale for its being dropped. No mention of the non-adoption of this rule appears in the report of that Committee.
In turn, the New Jersey Supreme Court in its explanatory comments on the Rules of Professional Conduct does not comment on the non-adoption of this rule or the reasons therefor, and the staff recalls no discussion by the Court on the subject.
In short, it appears that the omission of this rule from the Rules of Professional Conduct was not done through any affirmative action on the part of any agency or committee of the Supreme Court of New Jersey.
The rule set forth in DR 7-105 did not originate in any formal canon or code of ethics, but derived from treatises on ethics relating to generally accepted standards of professional conduct. The rule has been uniformally applied by our Supreme Court. (See cases cited in Opinion 347, supra.) Attorneys have been seriously disciplined for violation of this rule.
A change in an important ethical principle, such as the one in question here, should not, in this Committee's view, be made in the
manner above outlined, and we do not believe that it was the considered intent of the New Jersey Supreme Court to make such a change.
In our opinion, the principle enunciated in that Disciplinary Rule, as applied in our former opinions, remains in effect. Therefore, the conduct disapproved in our Opinion 473, supra, which is similar to the proposed conduct, the subject of this inquiry, is disapproved.