Can a lawyer in a civil case threaten or help bring criminal charges, such as for perjury by the opposing side, to pressure a settlement?

Plain-English summary

The inquiring attorney represented a plaintiff in a civil action, and his client believed that officers and employees of the corporate defendant had committed perjury in interrogatories and depositions. The client wanted the attorney's help in pressing criminal charges and had told an attorney (the son of one of the individuals) that criminal charges would be brought unless the case settled. The inquirer questioned the propriety of assisting with criminal charges, at least until the civil matter concluded, in light of DR 7-105, which bars a lawyer from presenting, participating in presenting, or threatening to present criminal charges to obtain an improper advantage in a civil matter.

The Committee explained that DR 7-105 was a relatively new rule not based directly on a particular canon, but that the principle it embodies is old. Citing In re Cohn, In re Dworkin, and In re Krieger, in each of which the Supreme Court suspended an attorney who used or threatened criminal charges to gain a civil advantage, it confirmed that it has always been unethical for a lawyer to threaten or prosecute a criminal action to effect a civil settlement, while noting the present inquiry was not of the character of those disciplinary cases.

The Committee held that the lawyer owes a duty to his client and the court to correct the perjury situation as soon as possible and should not look the other way while a fraud is committed on the court through perjured testimony in discovery, but that he should seek relief through the court in the civil action. It held that he must not, during the pendency of the civil action, threaten criminal action or participate in filing criminal proceedings to force a settlement, because that conduct would clearly violate DR 7-105.

Currency note

This opinion was issued in 1976, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. New Jersey did not carry DR 7-105 forward verbatim into the 1984 RPCs; the conduct is now addressed through RPC 3.4 and RPC 8.4 and related case law. Treat this page as historical context, not current guidance.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: Can a lawyer threaten criminal charges to push a civil settlement?

A: Under this opinion, no. The Committee held that threatening criminal action to force a settlement during the pending civil case violates DR 7-105.

Q: What about real perjury committed during discovery?

A: The Committee said the lawyer should not ignore a fraud on the court but must seek relief through the court in the civil action, not through criminal threats.

Q: Did the Committee find the inquirer had acted improperly?

A: No. It stated the inquiry was not of the character of the disciplinary cases it cited; it answered prospectively about what the lawyer must not do.

Background and rules framework

The opinion applied DR 7-105 (no presenting, participating in, or threatening criminal charges to gain an improper civil advantage), reinforced by In re Cohn, In re Dworkin, and In re Krieger. New Jersey did not retain DR 7-105 by number in the 1984 RPCs; the conduct is now reached through RPC 3.4 and RPC 8.4.

Citations and references

Rules of Professional Conduct:

• DR 7-105 (no presenting, participating in, or threatening criminal charges to obtain an improper advantage in a civil matter), as in effect 1976; now addressed through MR 3.4 / NJ RPC 3.4 and MR 8.4 / NJ RPC 8.4

Cases:

• In re Cohn, 46 N.J. 202 (1966)
• In re Dworkin, 16 N.J. 455 (1954)
• In re Krieger, 48 N.J. 186 (1966)

See also

• NJ ACPE Op. 595: Collection Letter Threatening a Criminal Complaint
• NJ ACPE Op. 473: Rental-Agency Warning Letters Threatening Criminal Sanctions

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp347-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

99 N.J.L.J. 715, August 12, 1976

OPINION 347

Threatening Criminal Prosecution to Aid Civil Action

The inquiring attorney represents a plaintiff in a civil action, and his client believes that various officers and employees of the corporate defendant have committed perjury in answering questions on written interrogatories and oral depositions. The client has requested the inquirer's assistance in pressing criminal charges against these individuals, and the client has also indicated to an attorney, who is the son of one of the individuals involved, that criminal charges will be brought unless the case is settled. The inquirer questions the propriety of assisting in the bring of criminal charges, at least until the civil matter is completed, because of DR 7-105, which reads as follows:

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

DR 7-105 is a new rule in the sense that it is not based directly upon any particular canon. Wise, Legal Ethics (2d ed. 1970) 111, after referring to DR 7-105, states:

Once more, old canons 15, 22, 29, 30, and 32 would imply that such conduct is reprehensible, but nowhere was there a definite prescription against it.

The Committee is of the opinion that such letters are definitely unprofessional. It is not ethical to attempt to collect a civil debt with a threat of criminal prosecution. (See The People v. Fops, 261 Ill. 576, 578; 7 CJS (Attorney and Client--Sec. 23h, note 62) p. 760; Drinker, Legal Ethics, 1953, p. 153.)

In In re Cohn, 46 N.J. 202 (1966), an attorney represented the owner of a tavern where a patron fell in front of the tavern and injured herself. The injured woman and her husband sued the tavern. Depositions disclosed that the marriage was not valid. The attorney assisted, cooperated and participated in filing of criminal charges by his client so as to obtain an advantage in the civil suit, viz., to influence the injured woman to discontinue her suit. The court suspended the attorney for one year.

In In re Dworkin, 16 N.J. 455 (1954), an attorney had received a claim of $70 against a man on a forged endorsement on a government check. He wrote a letter threatening criminal proceeding unless the same was paid, together with a counsel fee of $100 to be paid to him. As a result of the letter, the debtor paid $170, of which $70 was forwarded to the client. The matter came before the ethics and grievance committee and the Supreme Court suspended the lawyer for one year.

In In re Krieger, 48 N.J. 186 (1966), an attorney represented a plaintiff in civil litigation and initiated criminal prosecution against a witness for the purpose of achieving favorable result in the civil action. The Court held his conduct unethical and suspended him for three months.

Even though there was no canon which expressly covered the subject matter now embodied in DR 7-105, there is no question but that it has always been unethical for a lawyer to threaten or to prosecute criminal action in order to effect a civil settlement. We are not inferring that the inquiry before us is of the character of the cited disciplinary cases. We do want to emphasize the fact that while DR 7-105 is relatively new, the principle it embodies is old.

In the present inquiry, the lawyer owes a duty to his client and the court to take steps to correct the situation as soon as possible. He should not look the other way while a fraud is committed on the court through the use of perjured testimony during the discovery phase of the litigation. However, he should seek relief through the court in the civil action. He must not, during the pendency of the civil action, threaten criminal action or participate in the filing of criminal proceedings to force a settlement of the civil suit. Such conduct would clearly violate DR 7-105.