Opinion 89-3
FLORIDA BAR ETHICS OPINION OPINION 89-3 March 1, 1989 Advisory ethics opinions are not binding. An attorney may not threaten criminal prosecution solely to gain advantage in a civil matter or for purposes of harassment. Note: When this opinion was written, there was no express prohibition against such conduct in the Rules of Professional Conduct. The Supreme Court has since re-enacted the specific prohibition in Rule 4-3.4(g). See In re: Amendments to the Rules Regulating The Florida Bar, 718 So.2d 1179 (Fla. 1998). RPC: CPR: Opinion: 4-3.1; 4-4.4; 4-8.4(c); 4-8.4(d) EC 7-21; DR 7-105 85-3 A member of The Florida Bar presents this question: Is a member of The Florida Bar subject to disciplinary action for threatening criminal prosecution in a matter related to a civil action? DR 7-105 of the former Code of Professional Responsibility provided: A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. The Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar), which superseded the former Code effective January 1, 1987, do not contain an express counterpart to DR 7-105. Nevertheless, it is apparent that the Rules of Professional Conduct do prohibit the type of conduct that was specifically proscribed by DR 7-105. Several rules are particularly relevant to the topic of threatening criminal prosecution. Rule 4-3.1 generally prohibits an attorney from bringing a frivolous proceeding. This rule would prohibit an attorney from filing, or attempting to file, criminal charges that were groundless. Rule 4-4.4 states that in representing a client an attorney “shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” This rule would therefore prohibit an attorney from threatening or filing criminal charges if the primary purpose of doing so was to harass or embarrass someone. Rule 4-8.4(c) prohibits an attorney from engaging in conduct involving deceit or misrepresentation. An attorney who deliberately misleads an adverse party into believing that the attorney can control the filing or dropping of criminal charges would violate this rule. Rule 4-8.4(d) provides that an attorney shall not “engage in conduct that is prejudicial to the administration of justice.” This rule would prohibit an attorney from using, attempting to use, or threatening to use the criminal justice system solely to gain an advantage in a civil matter. The criminal process was not intended to be used as a means of settling private disputes and is undermined when it is misused in such a manner. Additionally, the civil process was designed for the resolution of private claims and the improper threat of criminal charges might deter someone from pursuing his or her legal rights. See EC 7-21, former Code of Professional Responsibility. In view of the rules discussed above, the Committee concludes that it would be improper for an attorney to bring, participate in bringing, or threaten to bring criminal charges against someone solely to obtain an advantage in a civil matter or if the primary purpose of such action is harassment. This conclusion recognizes that not every mention of possible criminal consequences is improper. It is important to distinguish between a permissible notice that is carefully tailored to serve a legitimate purpose and an improper express or implied threat to bring criminal charges if the recipient does not comply with certain demands related to a civil claim. An example of a permissible communication is the notice of worthless check which is prescribed by statute. See Florida Ethics Opinion 85-3. The motivation and intent of the attorney involved obviously will be a major factor in determining whether his or her actions are ethically improper. The Committee believes that such determinations necessarily must be made on a case-by-case basis, in light of case law and ethics opinions construing former DR 7-105.