Ethics Opinions from the Bar Association of San Francisco

OPINION 1975-6

It is improper for a public prosecutor to threaten criminal prosecution to obtain an individual's acceptance of a final judgment in a civil suit such as a permanent injunction, to seek an agreement to pay a civil penalty, or to seek the individual's agreement to make restitution to members of the public who may have been injured due to his acts.

QUESTION:

Is it proper for a public prosecutor to threaten or warn of the possibility of criminal prosecution to obtain an individual's consent to the acceptance of a final judgment in a civil suit involving a permanent injunction, payment of a civil penalty, or restitution to members of the public who may have been injured by the acts of that individual?

OPINION
It is improper under Rule 7-104 (effective 1/1/75) for a public prosecutor to threaten criminal prosecution to obtain an individual's acceptance of a final judgment in a civil suit such as a permanent injunction, to seek an agreement to pay a civil penalty, or to seek the individual's agreement to make restitution to members of the public who may have been injured due to his acts.

DISCUSSION:

The California Rules of Professional Conduct effective January 1, 1975, provide at Rule 7-104 that:

Rule 7-104. Threatening Criminal Prosecution.

A member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action nor shall he present or participate in presenting criminal, administrative or disciplinary charges solely to obtain advantage in a civil matter.

As of this date there have not been any opinions issued by the State Bar of California interpreting Rule 7-104. [1] However, Rule 7-104 was derived from the Code of Professional Responsibility of the American Bar Association, Rule 7-105 which provides as follows:

DR 7-105. Threatening Criminal Prosecution.

(a) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to gain advantage in a civil matter. [2]

Ethical Consideration EC 7-21 provides that:

EC 7-21 The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.

EC 7-21 cited the Court's decision in Matter of Gelman, 230 App.Div. 524, 527, 245 NYS 416, 419 (1930) where it was held that:

This court has heretofore expressed its disapproval of using threats of criminal prosecution as a means of forcing settlement of civil claims....

"Respondent has been guilty of a violation of a principle which condemns any confusion of threats of criminal prosecution with the enforcement of civil claims. For this misconduct, he should be severely censured."

It is important to note that the A.B.A. Ethical Consideration opinions place a heavier ethical duty not a lesser ethical duty upon Government Counsel. EC 7-11 provides in pertinent part that:

A lawyer's responsibility varies with the condition of the client or the nature of a proceeding or because he is a government attorney. For instance, duties vary with representing an incompetent or illiterate or before administrative or legislative bodies or being a public prosecutor. (Emphasis added.)

See also EC 7-14 and Wise, Legal Ethics (2nd Ed. 1970) pp. 105-106.

Those State Bar Associations which have considered the matter of a public prosecutor's ethical duty in using or threatening to use the criminal process as a lever to obtain an advantage or compliance in civil proceedings have uniformly held that such conduct is unethical. N.Y.C. 159 (Op. 299 10/16/34) Ohio Op. 11; Okla. BALEC (Op. 156 10/52); 24 Ore. S.B. Op. 128 (11/63); Mich. Op. 129 10/49.

For instance, the Oregon State Bar at Opinion 128 issued November, 1963 held that a prosecuting attorney's letter sent to a prospective criminal defendant which stated that he would be prosecuted unless he made restitution to the private payee was ethically improper, the rationale being that it assumed absolute liability and guilt.

Likewise, the Oklahoma State Bar at Okla. B.A.L.E.C. (Op. 156 10/52) held that an Assistant City Attorney could not use his authority to threaten a maker of bad checks with criminal prosecution in order to require him to make regular payments on his debt to a payee.

Other State Bar Associations that considered the matter have uniformly determined that it is ethically improper for a prosecuting attorney to attempt to induce a defendant in a civil proceeding to comply with the demands or wishes of the prosecutor with threats, either expressed or implied, of criminal prosecution. These opinions have made it clear that whether or not such threats are successful is irrelevant.

Rule 7-104 of the California Rules of Professional Conduct is even more restrictive than A.B.A. Rule 7-105 for it provides that "a member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action", and is not limited to situations where such threats are made "solely" to obtain an advantage.