Ethics Opinions from the Bar Association of San Francisco
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.
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?
The California Rules of Professional Conduct effective January 1, 1975, provide at Rule 7-104 that:
As of this date there have not been any opinions issued by the State Bar of California interpreting Rule 7-104.  However, Rule 7-104 was derived from the Code of Professional Responsibility of the American Bar Association, Rule 7-105 which provides as follows:
Ethical Consideration EC 7-21 provides that:
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:
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:
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.
All opinions of the Committee are subject to the following disclaimer:
In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.