LEO: Threatening Criminal Charges: Part-Time  LE Op. 1582

 

Threatening Criminal Charges: Part-Time Commonwealth's

Attorney Writing Threatening Letter on Behalf of Civil,

Private Client Where Possible Activity Occurred in

Adjoining County.

 

March 9, 1994

 

You have presented a hypothetical situation in which Attorney A serves as

a part-time Commonwealth's Attorney for County X and maintains a separate

civil practice. On behalf of a client, Attorney A wrote a letter to the

client's sister regarding concerns over the handling of the financial

affairs of the client's mother. You state that the sister and her daughter

were taking care of the mother, including [managing] her finances. You

also state the the mother is elderly, with short-term memory deficits.

 

You state that the letter, which was sent on the letterhead of the firm

with which Attorney A practices, suggests certain steps to allay the

concerns of the client and concludes with the following statement: "If you

do not feel you can honor these requests, he will have no choice but to

seek assistance through law enforcement and legal avenues." You indicate

that any mishandling of funds would have occurred in County Y, which

adjoins County X. Furthermore, neither the mother, sister, nor niece of

the client is aware that A is the Commonwealth's Attorney for County X.

You further indicate that, in the course of representing the mother in a

guardianship proceeding brought by Attorney A on behalf of the son,

Attorney B becomes aware of this letter.

 

Finally, Attorney A, without being aware that B knows of this letter,

represents to the Circuit Court of County Y that he has no interest in

seeing the sister or niece of his client prosecuted.

 

You have asked the committee to opine, under the facts of the inquiry,

whether the letter from Attorney A constitutes misconduct raising a

substantial question regarding his fitness to practice law.

 

The appropriate and controlling Disciplinary Rules related to your

inquiry are 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 obtain an advantage in a civil matter; and DR:1-103(A)

which states that a lawyer having information that another lawyer has

committed a violation of the Disciplinary Rules that raises a substantial

question as to that lawyer's honesty, trustworthiness, or ability to

practice law in other respects, shall report such information to the

appropriate professional authority.

 

The committee believes that the inquiry's response requires a two-step

analysis, i.e., (1) is the letter a threat; and (2) if so, is the threat

solely to obtain an advantage in a civil matter.

 

The committee interprets the letter, referring to seeking assistance

through "law enforcement and legal avenues" as threatening. The committee

has previously opined that it is improper for a lawyer to allude to

possible criminal prosecution, when corresponding with a debtor, for the

sole purpose of advancing a client/creditor's civil claim. See LE Op.

715 and LE Op. 716. The committee has also previously opined that it is

unethical for an attorney to assist his client in alluding to criminal

prosecution if such notice is for the sole purpose of obtaining an

advantage for the client in a civil suit. See LE Op. 1388, LE Op. 1569.

 

The facts you provide indicate that Attorney A has represented to the

Circuit Court of County Y that he has no interest in seeing the sister or

niece of his client prosecuted. The committee feels it reasonable to

conclude, therefore, that Attorney A sent such a threatening letter to

intimidate the sister into taking the actions requested by Attorney A and

his client. Thus, the committee opines that it is improper, under DR:7-

104(A), for Attorney A to send such a letter to his client's sister.

 

Having so opined that the letter sent by Attorney A was improper, the

committee again refers you to DR:1-103(A) which describes the lawyer's

obligation to report misconduct of another lawyer. In interpreting that

Rule, the committee has also consistently adopted a two-prong test to be

satisfied before the obligation to report misconduct arises: (1) the

lawyer must have information to a substantial degree of certainty

indicating that another lawyer's conduct has violated one of the

Disciplinary Rules; and (2) that violation must raise a substantial

question as to that lawyer's honesty, trustworthiness, or fitness to

practice law in other respects. /1 See LE Op. 1004. Whether an

attorney's conduct is such that it raises a "substantial question as to

that lawyer's honesty, trustworthiness, or 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's characteristics. See LE Op. 1308 and In re Himmel,

125 Ill.2d 531, 533 N.E.2d 790 (1988).

 

Committee Opinion March 9, 1994