MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-16
May an attorney in a civil matter assist a client in pressing criminal charges where the criminal charges are related to the subject of the civil litigation but where the attorney makes no representation or threats to the opposing party?
Your inquiry asks: “May an attorney in a civil matter assist a client in pressing criminal charges where the criminal charges are related to the subject matter of the civil litigation, and where the attorney makes no representation, threatening or otherwise, to the opposing party?”
You also inquire: “More specifically, may an attorney assist his complaining client in communicating with law enforcement officials and prosecutors in an attempt to seek the investigation and prosecution of criminal charges for stolen property and fraud, where the stolen property and fraud in question are the subject matter of a civil suit by the same client, provided that the attorney makes no communication concerning the criminal matter to the opposing party?”
You state your research of these issues has led you to an earlier opinion of this Committee, Ethics Opinion 93-15, which you interpret as indicating that Disciplinary Rule (DR) 7-105 of the old Code of Professional Responsibility is still in force. DR 7-105(A) reads:
“A lawyer shall not present or participate in presenting, or threaten to present criminal charges solely to obtain an advantage.”
By Order of the Court of Appeals of Maryland, filed April 16, 1986, the Code of Professional Responsibility was amended, and the Maryland Rules of Professional Conduct were adopted as governing the conduct of attorneys from and after January 1, 1987. The Maryland Rules of Professional Conduct are patterned after the ABA Model Rules of Professional Conduct with various amendments. Therefore, DR 7-105(A), as constituted in the former Maryland Code of Professional Responsibility, was no longer in effect from and after January 1, 1987.
DR 7-105(A) has no counterpart in the new Maryland Rules of Professional Conduct. In The Law of Lawyering (3rd Edition), (2003), Hazard & Hodes, Section 40.4, it is stated that DR 7-105(A) was “deliberately omitted as redundant or overbroad or both” by the drafters of the ABA Model Rules.
That ethical ban of DR 7-105(A) would appear redundant in Maryland because of a) Rule 8.4(b) of the Maryland Rules of Professional Conduct makes the commission of a crime a disciplinary offense and b) statutory crimes related to extortion or other threats as contained in Subtitle 7 (Sections 3-701 et seq.) of the Criminal Law Article of the Maryland Code. DR 7-105(A) may have been seen as overbroad by having a chilling effect on an attorney’s legitimate efforts to seek remedies for a wronged client in the criminal arena, e.g. restitution or proper settlement strategies for a client with a legal claim of right and an honest belief that criminal charges are well founded.
Ethics Opinion 93-15 was this Committee’s first opportunity to opine on these types of issues under the Maryland Rules of Professional Conduct. That opinion relied heavily upon former advisory opinions of this Committee when the Maryland Rules of Professional Responsibility were in effect and the opinions in other jurisdictions that continued to espouse the principles of DR 7-105 by linkage to various of the new Model Rules.
In Ethics Opinion 2000-09, this Committee cited Ethics Opinion 93-15 for the holding that, under the “present Rules of Professional Conduct, it is unethical to threaten criminal prosecution to ‘obtain an advantage in a civil matter.’ ” To the extent that both those earlier opinions rely upon the express language of DR-105(A), both opinions are hereby overruled simply because DR-105(A) no longer exists in the Maryland Rules of Professional Conduct.
In applying the Maryland Rules of Professional Conduct to the particular circumstances stated in your inquiries, neither situation appears to be violative of the Rules in the opinion of this Committee. However, you should be aware that under other circumstances, such conduct could violate the Rules.
This Committee is aware of some statutes, both State and Federal, which either prohibit threats of criminal prosecution, may make threatening criminal prosecution a crime, or even require notice of criminal penalties in certain circumstances. The application of such statutes is legal in nature and therefore beyond the scope of this Committee. The following list of such statutes is not intended as complete but rather a practical guide to such situations:
- Subtitle 7, Criminal Law Article, MD CODE ANN., Sections 3-701 et seq.
(“Extortion and Other Threats”)
- Subtitle 2, Commercial Law Article, MD CODE ANN., Sections 14-201 et seq. (“Maryland Consumer Debt Collection Act”)
- 15 USCS, Sections 1692 et seq. (Federal “Fair Debt Collection Procedure Act”)
- Subtitle 8, Commercial Law Article, MD CODE ANN., Sections 15-802 et seq. (“Dishonored Checks and Other Instruments – Collection”)
The Committee appreciates the concern arising from a well-known prohibition having no counterpart in the redrafted rules, particularly where the underlying principles are basically sound and omission in the redraft is due to perceived overreaching in the former approach to addressing the problem. In an effort to provide guidance in these situations, the Committee recommends consideration of the following statement from ABA Formal Opinion 92-363, “Use of threats of Prosecution in Connection With a Civil Matter”, (July 6, 1992):
“The Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges against an opposing party in a private civil matter to gain relief for a client, provided that the criminal matter is related
to the client’s civil claim, the lawyer has a well-founded belief that both
the civil claim and the criminal charges are warranted by the facts, and the
lawyer does not attempt to exert or suggest improper influence over the
criminal process.”