Can a lawyer threaten or raise the possibility of criminal charges against the opposing party to gain an advantage in a civil case?

Plain-English summary

The Committee revisited Ethics Opinion 77-3 in light of Alaska's 1993 adoption of the Rules of Professional Conduct and ABA Formal Opinion 92-363. It concluded that 77-3 should be withdrawn, and that under the current rules it is ethical for a lawyer to use the possibility of presenting criminal charges against an opposing party in a private civil matter to gain relief for a client, provided 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 law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process.

The opinion explained that the old result in 77-3 rested on former Disciplinary Rule 7-105, which barred presenting or threatening criminal charges solely to gain a civil advantage. The drafters of the Model Rules deliberately omitted that provision, reasoning that extortionate, fraudulent, or otherwise abusive threats were already covered by more general prohibitions, and Alaska's rules likewise contain no counterpart to DR 7-105. Following ABA Formal Opinion 92-363, the Committee identified the general rules that still govern such conduct: Rule 8.4(b) (criminal acts reflecting on fitness), Rule 4.4 (no substantial purpose other than to embarrass, delay, or burden), Rule 4.1 (truthfulness, so a threat made without intent to proceed would violate it), and Rule 3.1 (no frivolous claims).

The opinion explained that although the Model Rules contain no express relatedness requirement, the criminal matter must be related to the civil claim so the lawyer can avoid exposure to a compounding charge (which would itself implicate Rule 8.4(b)), and so negotiations stay focused on the true value of the civil claim rather than extraneous matters. Finding Alaska's rules similar or identical to the Model Rules, the Committee adopted the logic of ABA Formal Opinion 92-363, concluded the approach gives clearer guidance and better fits a lawyer's duty to zealously assert a client's position, and withdrew Opinion 77-3.

Currency note

This opinion was issued in 1997, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer threaten criminal charges to settle a civil case?

A: The opinion concluded a lawyer may raise the possibility of criminal charges to gain civil relief if the criminal matter is related to the civil claim, both are warranted by law and fact, and the lawyer does not try to improperly influence the criminal process.

Q: Didn't a rule once flatly prohibit this?

A: Per the opinion, former DR 7-105 barred presenting or threatening criminal charges solely for civil advantage, but the Model Rules and the Alaska rules deliberately omitted that provision, leaving such conduct to general rules.

Q: Why must the criminal matter be related to the civil claim?

A: The opinion explained that relatedness lets the lawyer avoid a compounding charge (which would implicate Rule 8.4(b)) and keeps negotiations focused on the true value of the civil claim rather than extraneous matters.

Q: What rules still limit this conduct?

A: The opinion identified Rules 8.4(b), 4.4, 4.1, and 3.1, which reach criminal acts, harassment, dishonest threats with no intent to proceed, and frivolous claims.

Background and rules framework

The opinion interpreted Alaska Rules of Professional Conduct 3.1 (meritorious claims; Model Rule 3.1), 4.1 (truthfulness in statements to others; Model Rule 4.1), 4.4 (respect for the rights of third persons; Model Rule 4.4), and 8.4(b) (criminal acts reflecting on fitness; Model Rule 8.4). It followed ABA Formal Opinion 92-363 and noted the deliberate omission of former DR 7-105 from the Model Rules. It cited Alaska's compounding statute (AS 11.56.790) and extortion statute (AS 11.41.520).

Citations and references

Rules of Professional Conduct:

• Alaska RPC 3.1 (meritorious claims), 4.1 (truthfulness), 4.4 (rights of third persons), 8.4(b) (criminal acts)

Statutes:

• AS 11.56.790 (compounding); AS 11.41.520 (extortion)

Other opinions cited:

• ABA Formal Opinion 92-363 (threats of prosecution in a civil matter)
• Alaska Ethics Opinion 77-3 (withdrawn)

See also

• ABA Formal Op. 92-363: Threatening Prosecution

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/97-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 97-2
Use Of Threats Of Criminal Prosecution
In Connection With A Civil Matter
The Ethics Committee has been asked to review Ethics Opinion No. 77-3
in light of changes to Alaska Rules of Professional Conduct (“Ethical Rules”)
adopted in 1993 and American Bar Association Formal Opinion 92-363 relating
to the Use of Threats of Prosecution in Connection with a Civil Matter. The
Ethics Committee has determined that in light of the present ethical rules,
Ethics Opinion No. 77-3 should be withdrawn. Under Alaska’s Ethical Rules, it
is ethical for a lawyer to use the possibility of presenting criminal charges
against the 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 well-founded belief that both the civil claim and the criminal charges are
warranted by the law and the facts, and the lawyer does not attempt to exert or
suggest improper influence over the criminal process.
Ethics Opinion No. 77-3 addressed the issue of whether an attorney or
firm which represents a client in a civil case to collect a debt may also initiate a
criminal prosecution for violation of a statute which makes failure to pay a
crime. The opinion holds that an abuse of the ethical rules occurs only where
the motive for the prosecution is solely to obtain an advantage in the civil case.
The opinion goes on to state that communications from the lawyer to the
offender that the offender may avoid prosecution by paying are clearly
prohibited by prior Disciplinary Rule 7-105 which stated “[a] lawyer shall not
present, participate in presenting, or threaten to present criminal charges
solely to obtain an advantage in a civil matter.”
In reviewing Ethical Opinion 77-3, it is important to first consider the
purpose of prior DR 7-105 and the presence or absence of similar prohibitions
in Alaska’s Ethical Rules. The stated purpose for DR 7-105 was to prevent the
oppressive use, and thereby the subversion, of the criminal justice system.
This provision, however, was deliberately omitted in the Model Rules of
Professional Conduct. The reasoning behind this omission rested on the
drafters’ position that “extortionate, fraudulent, or otherwise abusive threats
were covered by other, more general prohibitions in the Model Rules and thus
that there was no need to outlaw such threats specifically.” C.W. Wolfram,
Modern Legal Ethics (1986) §13.5.5 at 718, citing Model Rule 8.4 legal
background note (Proposed Final Draft, May 30, 1981). Similar to the Model
Rules, there is no counterpart to DR 7-105 in Alaska’s Ethical Rules.

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The American Bar Association addressed a similar issue in Formal
Opinion (“ABA Opinion”) 92-363. This opinion holds that the Model Rules do
not prohibit a lawyer from using the possibility of presenting criminal charges
against the opposing party in a civil matter to gain relief for her client, provided
that the criminal matter is related to the civil claim, the lawyer has a wellfounded belief that both the civil claim and the possible criminal charges are
warranted by the law and the facts, and the lawyer does not attempt to exert or
suggest improper influence over the criminal process.
In reaching this decision, the ABA Opinion cites the fact that the
counterpart to DR 7-105 was deliberately not contained in the Model Rules.
This fact, along with the reasoning noted above, supports the conclusion that
the drafters of the model rule intended to eliminate the previous prohibitions
contained in DR 7-105. The ABA Opinion also cites other Model Rules which
could govern an attorney’s conduct similar to those in question. These rules
include Model Rule 8.4(b) which provides that it is professional misconduct for
a lawyer to “commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects.” Model Rule
4.4 prohibits a lawyer from using means that “have no substantial purpose
other than to embarrass, delay, or burden a third person…” Threatening
criminal charges to merely harass a third person would violate this rule.
Additionally, Model Rule 4.1 imposes a duty on lawyers to be truthful when
dealing with others on a client’s behalf. A lawyer who threatens criminal
prosecution, without any actual intent to so proceed would violate this rule.
Finally, Model Rule 3.1 prohibits an advocate from asserting frivolous claims.
A lawyer who threatens criminal prosecution that is not well founded in fact or
law, or threatens such prosecutions in furtherance of a civil claim that is not
well founded violates this rule.
While the Model Rules contain no provision expressly requiring that the
criminal offense be related to the civil action, it is only in this circumstance
that a lawyer can defend against charges of compounding a crime (or similar
crimes).1 A relatedness requirement avoids exposure to the charge of
compounding, which would violate Rule 8.4(b)’s prohibition against “criminal
act[s] that reflect adversely on the lawyer’s honesty, trustworthiness or fitness
as a lawyer in other respects.” It also tends to ensure that negotiations will be
focused on the true value of the civil claim, which presumably includes
criminal liability arising from the same facts or transaction, and discourages

1

See AS 11.56.790 (Alaska Compounding Statute) and AS 11.41.520 (Alaska’s Extortion

Statute).

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exploitation of extraneous matters that have nothing to do with evaluating that
claim.
Alaska’s Ethical Rules contain similar or identical language to the Model
Rules noted above. Under these circumstances, this committee agrees with the
logic of the ABA Formal Opinion No. 92-363. The holding in Ethics Opinion
77-3 is based upon the language of past DR 7-105, which is not contained in
the present Ethical Rules. Additionally, other provisions within the Ethical
Rules adequately address potential unethical conduct. Finally, the rule
adopted under ABA Formal Opinion No. 92-363 provides clearer guidelines for
practitioners and is more consistent with an attorney’s obligations to zealously
assert a client’s position in our adversary system.
Therefore, under Alaska Ethical Rules, it is not unethical for a lawyer to
use the possibility of presenting criminal charges against the 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 law and the
facts, and the lawyer does not attempt to exert or suggest improper influenced
over the criminal process. Therefore, Ethics Opinion 77-3 is withdrawn.
Approved by the Alaska Bar Association Ethics Committee on March 6, 1997.
Adopted by the Board of Governors on March 21, 1997.

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