Legal Ethics Opinion No. 1434 Threatening Criminal or Disciplinary Charges: Attorney Demand Letter Stating Civil and Criminal Penalties for Failure to Settle Breach of Contract Claim You have presented a hypothetical situation in which an attorney [Attorney A] was employed as general counsel for a corporation while a member of the bar in another jurisdiction. After Attorney A's employment with the corporation was terminated, the corporation felt it had fully compensated Attorney A. However, Attorney A believes he is due additional compensation. Attorney A subsequently became admitted to the Virginia State Bar and became associated with a District of Columbia law firm which maintains an office in the Commonwealth of Virginia. An attorney with the law firm [Attorney B] sent a letter to the corporation indicating that it represented Attorney A and demanding that the corporation pay both back salary and severance pay to Attorney A. The letter did not reveal that Attorney A was associated with the firm, but the letter stated: If you would like to avoid litigation in this matter, I suggest you call me immediately. Please understand that your failure to pay Attorney A is not only a breach of contract, but also a violation of Virginia law which could subject you to civil and criminal penalties. Attorney A has every right to report you to the Virginia Department of Labor and Industry. However, we would like to resolve this matter amicably. [emphasis added] You have asked the committee to opine whether, under the facts of the inquiry, the demand letter is violative of Disciplinary Rule 7-104 as to (l) Attorney A, (2) the law firm with whom Attorney A is associated, and/or (3) Attorney B (who is not a member of the Virginia State Bar). As your inquiry posits, the appropriate and controlling Disciplinary Rule related to the facts you present is DR 7-104(A) which provides that a lawyer shall not present, participate in presenting, or threaten to present criminal or disciplinary charges solely to gain advantage in a civil matter. The committee has previously opined that it is unethical for a lawyer to threaten to present criminal charges solely to obtain an advantage in a civil matter. See LEOs #715, #716, #776, #1233. Additionally, in LEO #715, the committee stated that if counsel alludes to possible criminal prosecution when corresponding with a debtor for the sole purpose of advancing his client's civil claim, such conduct is unethical. Thus, if Attorney A authorized the use of the language quoted above, the committee opines that Attorney A's conduct, in authorizing Attorney B to refer to possible criminal penalties for failure to pay back pay, is improper under the dictates of DR 7-104(A) DR l-l02(A)(l). The committee also opines that, since the attorney-client relationship is a personal one, thus precluding violations of the Virginia Code of Professional Responsibility by a business entity, the law firm entity cannot be found to have committed any ethical violations as to the letter. In addition, the committee directs your attention to DR 1-103(A) which mandates reporting to the appropriate authority by an attorney having knowledge that another attorney has committed a violation of the Disciplinary Rules that raises a substantial question as to that lawyer's fitness to practice law in other respects. Whether an attorney's conduct is such that it raises a "substantial question as that lawyer's fitness to practice law in other respects" requires a case-by-case determination which should be made after consideration of the facts and analysis of the impact on the offending lawyer fitness to practice law. [See: LEO #1308 and In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790 (1988)] Finally, the committee opines that Attorney B is not subject to the Virginia Disciplinary Rules since he has not been admitted to practice in this jurisdiction. The committee suggests, however, that his conduct may be of interest to the disciplinary body in which he is licensed to practice. Committee Opinion October 21, 1991
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