LEO: Attorney - Threatening Criminal  LE Op. 1036

 

Attorney - Threatening Criminal Charges.

 

February 15, 1988

 

You advise that you represented a contractor, and Attorney B represented

the owner of three buildings. The owner had brought two suits against your

client and your client brought one counterclaim against the owner. The

owner had given a deed of trust on one of his buildings, securing one of

the notes on which the contractor had sued. You advised your client to

institute foreclosure on the deed of trust after being faced with numerous

continuances while waiting to get to trial on your client's counterclaim.

Your client decided to foreclose.

 

After sending the certified notice, you received a letter from counsel

for the owner. In this letter, counsel for the owner informed you that in

addition to the contractor, the owner would hold you "personally liable

for any damage to their business or business' reputation by the

publication of the notice of the trustee's sale."

 

You wish to know whether or not the owner's attorney violated the

Virginia Code of Professional Responsibility by sending you this letter.

 

Disciplinary Rule 7-104 states that "A lawyer shall not present,

participate in presenting, or threaten to present criminal or disciplinary

charges solely to obtain an advantage in a civil matter." Assuming that

there is a basis for an action it does not appear that the letter the

owner's attorney sent you violates DR:7-104. However, should no basis

for the threatened action exist, there may then be a violation of DR:7-

102(A)(1). DR:7-102(A)(1) states that a lawyer shall not "file a suit,

initiate criminal charges, assert a position, conduct a defense, delay a

trial or take other action on behalf of his client when he knows or when

it is obvious that such action would merely serve to harass or maliciously

injure another."

 

Committee Opinion February 15, 1988