After Michigan dropped the old rule against threatening criminal charges to gain a civil advantage, may a lawyer warn an opponent of possible criminal prosecution?

Plain-English summary

A lawyer asked whether there are ethical constraints on warning of possible criminal prosecution to obtain legitimate objectives for a client. The Committee explained that the former Michigan Code of Professional Responsibility, in DR 7-105(A), barred a lawyer from presenting or threatening criminal charges "solely to obtain an advantage in a civil matter," and that prior opinions (CI-332, CI-482, CI-776, CI-1064) applied that ban, for example, to collection letters threatening criminal charges over bad checks.

The Committee observed that DR 7-105(A) was not carried into the MRPC, effective October 1, 1988. Applying doctrines of statutory construction, under which an omission is presumed to change meaning unless a contrary intent is manifest, it concluded the drafters dropped the specific language because the subject was covered by other, more precise rules: MRPC 3.1 (meritorious claims), 3.3 (candor), 3.4 (fairness to opposing party), 3.8 (prosecutor's responsibilities), 4.1 and 4.4 (truthfulness and no substantial-purpose-to-burden), and 8.4(b) and (d). Where an independent duty to report exists, such as MRPC 8.3, the Committee concluded a lawyer may not suggest vitiating that duty for compensation.

The Committee concluded that, outside fact patterns implicating those rules, there is no direct ethical prohibition on a lawyer making good-faith representations, including calling attention to applicable criminal law, asserting a reasonable belief of possible criminal culpability, and requesting that authorities commence or discontinue criminal proceedings where supported and appropriate. It distinguished a coercive "threat" from a legitimate "warning," cautioned that there should be a reasonable nexus between the indicated criminal conduct and the civil redress sought, and noted Michigan law independently prohibits threats made to extort money (MCL 750.213) and abuse of process (MCL 600.2907). It concluded a lawyer may advise a client to withhold (but not deliberately conceal) or pursue criminal proceedings consistent with the client's rights, and, absent an affirmative duty to report, may agree at a fully informed client's request not to report another party's alleged criminal activity as a condition of resolving the matter.

Currency note

This opinion was issued in 1991 and interprets the Michigan Rules of Professional Conduct as they then stood, shortly after the 1988 shift from the Code of Professional Responsibility to the MRPC. The MRPC have since been amended, and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific rule, statute, or requirement mentioned here.

Common questions

Q: Did Michigan keep the old rule against threatening criminal charges to gain a civil advantage?

A: No. The opinion concluded the MRPC deliberately omitted the former DR 7-105(A) ban, so there is no specific rule prohibiting a good-faith warning of possible criminal prosecution to enforce a legitimate claim.

Q: What limits still apply to warning an opponent about criminal exposure?

A: The opinion concluded the conduct must be in good faith and not for harassment, with a reasonable nexus between the criminal conduct and the civil redress, and remains subject to MRPC 3.1, 3.4, 4.1, 4.4, 8.4, and the extortion and abuse-of-process statutes.

Q: Can a lawyer agree not to report a party's alleged crime as part of a settlement?

A: The opinion concluded that, absent an affirmative legal duty to report, a lawyer may agree at a fully informed client's request not to report another party's alleged criminal activity as a condition of resolving the client's matter.

Background and rules framework

The opinion interpreted the omission of former MCPR DR 7-105(A) in light of the MRPC, reading the subject as now governed by MRPC 3.1 / Model Rule 3.1 (meritorious claims), 3.4 / Model Rule 3.4 (fairness to opposing party), 4.1 and 4.4 / Model Rules 4.1 and 4.4 (truthfulness; no substantial purpose to burden), 8.3 / Model Rule 8.3 (reporting misconduct), and 8.4(b), (d) / Model Rule 8.4 (misconduct). It treated Michigan's extortion (MCL 750.213) and abuse-of-process (MCL 600.2907) law as independent limits.

Citations and references

Rules of Professional Conduct:

• MR 3.1 / MRPC 3.1 (meritorious claims and contentions)
• MR 3.4 / MRPC 3.4 (fairness to opposing party and counsel)
• MR 4.4 / MRPC 4.4 (no substantial purpose to embarrass, delay, or burden)
• MR 8.3 / MRPC 8.3 (reporting professional misconduct)
• MR 8.4 / MRPC 8.4(b), (d) (misconduct; conduct prejudicial to the administration of justice)

Statutes:

• MCL 750.213 / MSA 28.418 (threats to extort money)
• MCL 600.2907 / MSA 27A.2907 (abuse of process)

Other opinions cited:

• CI-332, CI-482, CI-776, CI-1064 (collection letters and criminal-process threats under the former Code)

See also

• ABA Formal Op. 92-363: Threatening Prosecution
• CA Op. 1991-124: 'All Legal Remedies' Demand Letters

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=948&Type=6

Original opinion text

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

RI-78

March 14, 1991

SYLLABUS

No specific ethical rule prohibits a lawyer, when acting in good faith and without purpose of harassment, to call to the attention of an opposing party the possible applicability of a penal statute or make reference to specific criminal sanctions, or to warn of the possibility of criminal prosecution, even if done in order to assist in the enforcement of a valid right or legitimate claim of a client.

A lawyer may properly advise a client to either withhold or pursue criminal proceedings when such action is consistent with the protection of the client's rights and not contrary to a specific statutory or other duty to report the conduct, and may advise a client that the client may, in an appropriate case and in good faith, request that authorities commence or dismiss criminal charges against another party, even though the client's objective is the receipt of compensation or the obtaining of some other legal redress to which the client may be entitled.

Unless a specific duty to report conduct is imposed by law, a lawyer may also agree, when requested by a client, not to report alleged criminal activity on the part of another party as a condition of resolving the client's matter.

References: MRPC 3.1, 3.3, 3.4, 3.5, 3.8, 4.1, 4.4, 8.3, 8.4(b), 8.4(d); CI-332, CI-482, CI-776, CI-1064; MCL 600.2907, MSA 27A.2907; MCL 750.213, MSA 28.418.

TEXT

A lawyer asks whether there are any ethical constraints on using warnings of possible criminal prosecution to assist in obtaining legitimate objectives favorable to a client.

Prior to the adoption of the Michigan Rules of Professional Conduct (MRPC, effective October 1, 1988), the Michigan Code of Professional Responsibility (MCPR) contained specific language dealing with the topic of "threatening criminal prosecution." MCPR DR 7-105(A) provided as follows:

"A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."

MCPR DR 7-105(A) was grounded on the concept of preventing the utilization of threatened criminal process as a method of coercing civil settlement and therefore potentially deterring an opposing party from asserting appropriate legal rights, claims and defenses. The inappropriate utilization of such "threats" was equated with the abuse of judicial processes, an abuse which could tend to diminish public confidence in our legal system. MCPR DR 7-105(A) envisioned a civil adjudication process primarily designed for the settlement of disputes between parties, and a criminal process designed for the protection of society as a whole.

Four ethics opinions dealing with this topic were issued under the MCPR. CI-332 held that a lawyer may not, in drafting a collection letter, refer the debtor to an applicable, but purely criminal statute, where the statute had no direct bearing upon the rights of the creditor and debtor as to each other with respect to the debt in question. CI-482 dealt with the rights of the Friend of the Court to request criminal process in the enforcement of child support obligations. CI-1064 dealt with a lawyer's right to disclose to prosecutorial authorities the facts discovered through the client-lawyer's investigation which might cause the prosecutor to issue criminal process against the other party.

CI-776 dealt directly with the question of a lawyer threatening to press criminal charges. The Committee held that a lawyer may not send collection letters for a client on insufficient funds checks that threaten criminal charges, whether civil litigation is already pending or not, and that a lawyer may not draft or advise a client that it is "appropriate" to send collection letters that threaten such criminal action. This line of reasoning was echoed in a number of ethical opinions and disciplinary proceedings in other jurisdictions. See, for example, In Re Llewelling, 678 P2d 1229 (Ore 1984); In Re Carpenter, 443 P2d 238 (1968); Wisconsin Op E-87-5 (7/17/87).

The language of MCPR DR-105(A) was not included in either the proposed, or the adopted, rules now governing the ethical conduct of Michigan lawyers. The question now posed concerns the legal consequences and impact of the omission of the language of MCPR DR 7-105(A) from the MRPC and the effect of such omission upon the continued viability of the longstanding "prohibition" upon the use of threats of criminal prosecution by a lawyer. In construing the MCPR, we must ascertain and give effect to the intention of the drafters in proposing the rule, and give necessary assistance wherever required in the process of interpretation so as to avoid inconsistencies, reconcile conflicts and give meaning to the words and phrases that have been utilized, i.e., give effect to the intent of the Supreme Court in adopting the rules. See Bennett v. State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980).

Doctrines of statutory construction are clearly applicable as an aid in determining the Michigan Supreme Court's intention in adopting a particular court rule. See Greek v. Bassett, 112 Mich App 555; 316 NW2d 489 (1982). An omission is presumed to change the meaning of a statute unless a different intent is manifest. Borcus v. Michigan National Bank, 117 Mich App 662; 324 NW2d 123 (1982). A new statute covering the same ground as a former one, and inconsistent therewith, must be deemed to supersede the former law, Spillman v. Weimaster, 275 Mich 93; 265 NW 787 (1936). Clearly, unless some different intent is manifest from the enactment itself, an amendment or modification in a statute or rule should be construed as changing the meaning or purport of the original language. See Reinelt v. Public School Employees Retirement Board, 87 Mich App 769; 276 NW2d 858 (1979).

It is at least arguable that the drafters "dropped" the specific language of former MCPR DR 7-105(A) because they believed the topic was covered sufficiently in other rules such as MRPC 3.1, 3.3, 3.4, 3.5, 3.8, 4.1, 4.4, 8.3, 8.4(b), and 8.4(d). Each of these rules are more specific and unambiguous in their language than the former rule.

MRPC 3.1 compels lawyers to only pursue meritorious claims and contentions, and prohibits a lawyer from making frivolous bad faith assertions. Although the Rule prohibits a lawyer under any circumstances from making a frivolous or bad faith assertion, including an insupportable and unjustifiable implication of criminality or threat of criminal prosecution, it does not prohibit good faith, supportable contentions of criminal conduct on the part of the other party.

MRPC 3.3 requires a lawyer to demonstrate candor toward a tribunal, prohibits a lawyer from making false statements of material fact or law, permits a lawyer to refuse to offer evidence that the lawyer reasonably believes to be false, and requires a lawyer to inform the tribunal of all material facts. Good faith in dealing with a tribunal is mandated.

MRPC 3.4 compels a lawyer to be fair to the opposing party and counsel, and prohibits falsification of evidence, or offering inducements to witnesses that may be prohibited by law.

MRPC 3.8 deals with the special responsibilities of a prosecutor. Although certainly a prosecutor, among other duties, has an obligation not to utilize the prosecutor's office for purposes of improperly "coercing" civil settlement or resolution of matters, the utilization of prosecutorial authority and discretion to prosecute or not prosecute, or to drop charges in lieu of a civil settlement, has been widely accepted.

A lawyer may not knowingly make false statements of material fact or law, or use means that have no purpose other than to embarrass, delay or burden a third person, MRPC 4.1, 4.4. Nor may a lawyer engage in conduct involving dishonesty, fraud, or deceit, nor state or imply an ability to influence improperly a governmental agency or official, MRPC 8.4 (b) and (d). MRPC 8.4 (d) is of particular applicability in situations where a lawyer may desire to either seek or withdraw criminal charges as an "aid" to the assertion of civil claims.

Finally, MRPC 8.3(a) states:

"A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission."

Where an independent obligation to report conduct is created, such as MRPC 8.3, it would be inappropriate for a lawyer to suggest to the client that the duty be vitiated for compensation or other concessions or emoluments.

We conclude that the deliberate omission of a counterpart to MCPR DR 7-105(A) was predicated upon a determination that any abuse of process or other impermissible act which threatens or coerces others in the exercise of their legal rights is adequately regulated and governed by other provisions of the MRPC.

Other than fact situations which implicate the referenced rules, there would appear to be no direct ethical prohibition upon a lawyer's making good-faith representations on behalf of a client designed to obtain a client's legitimate pursuits, even if those representations include calling to the attention of others applicable criminal law, asserting in good faith a reasonable belief of possible criminal culpability, and requesting commencement or discontinuation of criminal proceedings when and where supported and appropriate. Although the MRPC place reasonable limitations upon the lawyer's conduct, no direct or even indirect prohibitions of good-faith assertions of possible criminal prosecution appears.

Are there policy reasons to incorporate the philosophy underlying MCPR DR 7-105(A) in the current MRPC? The current reality is that the criminal justice system is fantastically overburdened and has been recognized as inadequate in providing for the "protection of society as a whole." Increasingly, legislative bodies have turned to civil remedies as at least an alternative method of protecting citizens' rights. Broad new remedies, for example, have been incorporated into racketeering (RICO) legislation, providing both penal sanctions and civil penalties. Housing, health code, and environmental violations trigger both civil and criminal remedies, and of the most cost efficient and effective pressures brought to bear on violators is to "threaten" criminal prosecution, if in fact the violation in question is not rectified. Thus, the line between the civil and criminal adjudicative processes has become blurred. Lawyers should not be prohibited from assisting their clients or the public in obtaining legitimate ends sought totally within the bonds of the law.

The MRPC provides sufficient protection against the lawyer who abuses the legal process by making unmeritorious of frivolous claims, who fails to exercise candor, who treats another party unfairly, who abuses the authority of office, who uses means that have no substantial purpose other than to embarrass, delay or burden another person, who engages in dishonest conduct, or who states or implies an ability to improperly influence a governmental agency.

Possible limitations upon the use of untoward coercion or efforts to actively conceal offenses are more than ethically dictated. Michigan law also prohibits both the legal profession, as well as all other persons, from making threats of criminal prosecutions for the purpose of extorting money or pecuniary advantage, see MCL 750.213; MSA 28.418. MCL 750.149; MSA 28.340 prohibits the compounding of offenses -- the taking of money to conceal certain offenses. In turn, abuse of process is proscribed both by statute, MCL 600.2907; MSA 27A.2907; and by common law. A lawyer found to have abused process is subject to discipline.

No discussion of this issue can be complete without some comment upon the implications of this opinion upon concepts of professionalism and civility. Throughout this opinion the expression "to threaten," has been eschewed both because of its pejorative connotation and its "incivil" implications. A "threat" implies coercion. On the other hand, to "warn" of the potential criminal possibilities can be an appropriate part of negotiations.

We caution, however, that there should be a reasonable nexus between the indicated possible criminal conduct and the behavior for which a lawyer seeks civil redress. For example, it is one thing to suggest the possible penal sanctions available in order to collect a bad check; however, seeking financial recompense for a totally unrelated incident not only has the potential of running afoul of the criminal extortion statute, but raises serious questions of professionalism.

Therefore, in a proper case a Michigan lawyer may, when acting in good faith and under a reasonable belief that a cause of action or remedy exists, call to the attention of an opposing party's counsel a pertinent penal statute related to the transaction, may make reference to a specific criminal sanction which may be applicable, and may indicate or warn of the possibility of criminal prosecution, if done solely in order to assist in the enforcement of a valid right or legitimate claim of a client, and not done for the purposes of harassment.

A lawyer may properly advise a client to either withhold (but not to deliberately conceal) or pursue criminal prosecution consistent with the protection of the client's rights, and may advise a client that the client may, in an appropriate case and in good faith, request that authorities commence or dismiss criminal charges against another party, even though the client's objective is the receipt of compensation or the obtaining of some other redress from the other party.

In the absence of an affirmative duty to report, a lawyer may agree, when requested by a fully informed client, not to report alleged criminal activity on the part of another party as a condition of resolving the client's matter.