Can a part-time prosecutor in private civil practice send a letter threatening law-enforcement action to gain an advantage for a private client?

Plain-English summary

Attorney A served as a part-time Commonwealth's Attorney for County X and kept a separate civil practice. On behalf of a client, A wrote the client's sister, on firm letterhead, about concerns over the handling of the client's elderly mother's finances; the letter suggested steps and concluded that if the sister could not honor the requests, "he will have no choice but to seek assistance through law enforcement and legal avenues." Any mishandling would have occurred in adjoining County Y, and the recipients did not know A was the Commonwealth's Attorney for County X. In a later guardianship proceeding, opposing counsel learned of the letter, and A, unaware of that, represented to the Circuit Court of County Y that he had no interest in seeing the sister or niece prosecuted. The committee was asked whether the letter was misconduct raising a substantial question about A's fitness to practice.

The controlling rules were DR 7-104(A) (no presenting, participating in presenting, or threatening criminal or disciplinary charges solely to gain an advantage in a civil matter) and DR 1-103(A) (duty to report another lawyer's misconduct that raises a substantial question as to honesty, trustworthiness, or fitness). The committee framed a two-step analysis: whether the letter was a threat, and, if so, whether the threat was solely to gain a civil advantage.

The committee interpreted the reference to "law enforcement and legal avenues" as threatening, consistent with prior opinions that it is improper to allude to possible criminal prosecution to advance a client's civil claim (LE Op. 715, 716, 1388, 1569). Because A had represented to the court that he had no interest in prosecution, the committee found it reasonable to conclude he sent the letter to intimidate the sister into the requested actions, making it improper under DR 7-104(A). Turning to reporting, the committee restated the two-prong test under DR 1-103(A): the reporting lawyer must have information, to a substantial degree of certainty, that another lawyer violated a rule, and that violation must raise a substantial question as to honesty, trustworthiness, or fitness, a case-by-case determination (citing LE Op. 1004, 1308, and In re Himmel).

Currency note

This opinion was issued in 1994, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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 improper to threaten criminal charges to get someone to act in a civil dispute?

A: Under this 1994 opinion, yes, when the threat is solely to gain a civil advantage. The committee read the letter's reference to "law enforcement and legal avenues" as a threat and, given the lawyer's statement to the court, concluded it was sent to gain a civil advantage in violation of DR 7-104(A).

Q: Did the lawyer's role as a part-time prosecutor change the analysis?

A: The committee analyzed the conduct under the general threat rule, DR 7-104(A), and noted the recipients did not know the lawyer was the Commonwealth's Attorney; the impropriety turned on the threat being made solely for civil advantage rather than on the prosecutorial office itself.

Q: Must another lawyer who learns of the letter report it?

A: The committee said reporting depends on the two-prong test under DR 1-103(A): substantial certainty that a rule was violated, and that the violation raises a substantial question as to honesty, trustworthiness, or fitness, a case-by-case determination.

Background and rules framework

The opinion interpreted former Virginia DR 7-104(A) (no threatening criminal or disciplinary charges solely for civil advantage) and DR 1-103(A) (duty to report misconduct). Those provisions now correspond to ABA Model Rule 3.4 (fairness to opposing party, including the Virginia Rule 3.4(h)-(i) limits on threatening charges) and Model Rule 8.3 (reporting misconduct).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-104(A); DR 1-103(A) (Code of Professional Responsibility)
• ABA Model Rule 3.4 (fairness to opposing party); Model Rule 8.3 (reporting misconduct)

Cases:

• In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988), discipline for failing to report another lawyer's misconduct.

Other opinions cited:

• Virginia LE Op. 715, 716: improper to allude to criminal prosecution to a debtor solely to advance a creditor's civil claim.
• Virginia LE Op. 1388, 1569: unethical to assist a client in alluding to prosecution solely for civil advantage.
• Virginia LE Op. 1004, 1308: the two-prong reporting test and its case-by-case application.

See also

• VA LEO 1753: Threatening Charges in Collections
• VA LEO 1755: Threatening Charges to Stop Contact
• VA LEO 1646: Reporting Misconduct in a Civil Case

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1582.pdf

Original opinion text

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

Committee Opinion
March 9, 1994
LEGAL ETHICS OPINION 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.

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:7104(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.

1The Disciplinary Rule was amended, effective October 1, 1993, to include the “honesty, trustworthiness” language.

Committee Opinion
March 9, 1994
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 Legal Ethics Committee Notes. – If information about the ethics violation is a client confidence, a lawyer may report the other lawyer’s misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.

1The Disciplinary Rule was amended, effective October 1, 1993, to include the “honesty, trustworthiness” language.