Can a New Jersey lawyer threaten criminal charges in a collection letter to gain an advantage in a civil matter?

Plain-English summary

The inquiry presented a fact pattern like the one in Opinion 473, which in turn followed Opinion 347. The inquirer contended those opinions should be overruled because DR 7-105, the disciplinary rule providing that "a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter," was not adopted by the Supreme Court as part of the Rules of Professional Conduct effective September 10, 1984.

The Committee concluded that the principle continues in effect in New Jersey despite its omission from the Rules. It had inquired of members of the ABA Commission that drafted the Model Rules, the Debevoise Committee, and the staff of the New Jersey Supreme Court, and found that while the ABA Commission intentionally discarded DR 7-105, it did so without explanation, the Debevoise Committee never focused on or discussed the omission, and the Court's explanatory comments did not address it. The Committee reasoned that the rule did not originate in a formal canon but reflected generally accepted standards uniformly applied by the Supreme Court, with attorneys seriously disciplined for violating it, and that such an important ethical principle should not be changed in that manner; it did not believe the Court intended such a change. It therefore held that the conduct disapproved in Opinion 473, similar to the conduct in this inquiry, is disapproved.

Currency note

This opinion was issued in 1986, before New Jersey's adoption of the 2004 revisions to the 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 Treat this page as historical context, not current guidance.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: Is it still improper in New Jersey to threaten criminal charges to collect a civil debt?

A: Per the opinion, yes, it remained improper. The Committee held that the DR 7-105 principle continued in effect even though it was not carried into the Rules of Professional Conduct.

Q: The inquirer argued DR 7-105 was abandoned. Why did the Committee disagree?

A: The opinion found that neither the ABA, the Debevoise Committee, nor the New Jersey Supreme Court had affirmatively decided to drop the rule, and that an important ethical principle should not be changed by silent omission.

Background and rules framework

The opinion interprets the effect of New Jersey's 1984 move from the Disciplinary Rules to the Rules of Professional Conduct on former DR 7-105 (threatening criminal charges to gain a civil advantage). It relies on the Committee's prior Opinions 347 and 473 and the Supreme Court's consistent disciplinary application of the principle.

Citations and references

Other opinions cited:

• ACPE Opinion 473, 107 N.J.L.J. 137 (1981)
• ACPE Opinion 347, 99 N.J.L.J. 715 (1976)

Former disciplinary rule:

• DR 7-105 (no threatening criminal charges to obtain an improper advantage in a civil matter)

See also

• NJ ACPE Op. 590: Township Solicitor Serving as Attorney for a County Welfare Board (Overrules Opinion 568)
• NJ ACPE Op. 644: Nonrefundable Retainers

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp595-1.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.

118 N.J.L.J. 875, December 18, 1986

OPINION 595

Collection Letter Threatening to make Criminal Complaint

This inquiry presents a fact pattern similar to that dealt with in our former Opinion 473, 107 N.J.L.J. 137 (1981), which in turn was controlled by our Opinion 347, 99 N.J.L.J. 715 (1976).

The inquirer contends that these opinions should be overruled because DR 7-105 was not specifically adopted by the Supreme Court as part of the Rules of Professional Conduct (RPC 1.1, et seq., adopted effective September 10, 1984).

The question is thus squarely presented of whether the principles set forth in the former DR 7-105, and as confirmed in the cited opinions and authorities cited therein, continue to be effective in New Jersey. As set forth in that disciplinary rule, the principle is 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.

Our conclusion is that this principle continues in effect in New Jersey, notwithstanding that it was not explicitly adopted as a portion of the Rules of Professional Conduct.

In reaching this conclusion, we have made inquiry of members of the ABA Commission which formulated the ABA model rules of professional conduct, the Supreme Court Committee on Model Rules of Professional Conduct ("the Debevoise Committee") and the staff of the New Jersey Supreme Court.

From this inquiry, it appears that the ABA Commission did intentionally discard DR 7-105, but did not expressly set forth such action in its report, or explain the reasons for it.

The fact that this rule was not included in the ABA Model Rules of Professional Conduct was noted by one member of the Debevoise Committee early in the proceedings of the committee, but the committee at no meeting ever focused upon or discussed either the fact of the non-adoption of this rule, or any rationale for its being dropped. No mention of the non-adoption of this rule appears in the report of that Committee.

In turn, the New Jersey Supreme Court in its explanatory comments on the Rules of Professional Conduct does not comment on the non-adoption of this rule or the reasons therefor, and the staff recalls no discussion by the Court on the subject.

In short, it appears that the omission of this rule from the Rules of Professional Conduct was not done through any affirmative action on the part of any agency or committee of the Supreme Court of New Jersey.

The rule set forth in DR 7-105 did not originate in any formal canon or code of ethics, but derived from treatises on ethics relating to generally accepted standards of professional conduct. The rule has been uniformally applied by our Supreme Court. (See cases cited in Opinion 347, supra.) Attorneys have been seriously disciplined for violation of this rule.

A change in an important ethical principle, such as the one in question here, should not, in this Committee's view, be made in the manner above outlined, and we do not believe that it was the considered intent of the New Jersey Supreme Court to make such a change.

In our opinion, the principle enunciated in that Disciplinary Rule, as applied in our former opinions, remains in effect. Therefore, the conduct disapproved in our Opinion 473, supra, which is similar to the proposed conduct, the subject of this inquiry, is disapproved.