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John Gaal's Ethics Corner
Q: My client believes that another party has financially injured him and that this conduct was criminal. He wants me to write this other party threatening that we will file criminal charges against her if she does not make things right financially. I have researched the law and it appears that my client's instincts are right and that the conduct in question, if proven, would be criminal. Can I make this threat? Would it matter if instead of making a criminal threat, I threatened to report this other party to disciplinary authorities which govern her particular profession?
A: Disciplinary Rule 7-105 (A) provides that “[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” In a very recent opinion, the New York State Bar Association Committee on Professional Ethics has given this provision a generally narrow interpretation.
In Opinion 772, issued in November of 2003, the Committee held that DR 7-105 (A)'s prohibition against participating in or threatening criminal action “solely” to gain an advantage in a civil matter means exactly that, and so long as that participation or threat is not motivated solely by that purpose, it is permissible. The Committee observed that:
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