Threats Involving the Criminal Justice System
Opinion provides guidelines for a lawyer representing a client with a civil claim that also constitutes a crime.
Attorney A represents Client who is charged with criminal conspiracy to defraud Victim. Client was indicted on several counts and, because of his prior record, will likely receive active jail time. Attorney is negotiating a plea with the district attorney office. In the interim, Attorney Z, who represents the prosecuting witness, Victim, has conveyed to Attorney A the following proposal: Victim will not object to the plea arrangement and will stand mute at sentencing if Client will give Victim a confession of judgment in the corresponding civil action thereby agreeing to repay Victim pursuant to a payment schedule and Client's spouse will also execute an agreement to make payments to Victim. Victim and the district attorney's office acknowledge that spouse was not a part of the effort to defraud Victim and is not liable in any criminal prosecution or civil action.
Client is willing to enter into a confession of judgment for the full amount owing and agrees to a payment schedule that increases substantially once Client's spouse begins working. Client's spouse, however, does not want to enter into the contractual arrangement. If Client's spouse does not consent to this arrangement, Attorney Z has indicated that he will contact the district attorney's office to withdraw Victim's support for the plea. The district attorney's office is willing to enter into a plea only with the approval of Victim.
Does the conduct of Victim's attorney violate the Revised Rules of Professional Conduct?
Rule 7.5 of the superseded (1985) Rules of Professional Conduct, prohibited a lawyer from "present[ing], participat[ing] in presenting, or threaten[ing] to present criminal charges primarily to obtain an advantage in a civil matter." Rule 7.5 was deliberately omitted from the Revised Rules of Professional Conduct adopted on July 24, 1997. See Executive Summary of the Report of the Committee to Review the Rules of Professional Conduct in Materials for the North Carolina Supreme Court on the Proposed Revised Rules of Professional Conduct, N.C. State Bar, Raleigh, N.C., April 4, 1997. The absence of the rule from the Revised Rules of Professional Conduct does not mean, however, that all threats involving the criminal justice system are permitted nor does it mean that abuse of the legal system or extortion are condoned. See Rule 8.4 of the Revised Rules of Professional Conduct. A lawyer may present, participate in presenting, or threaten to present criminal charges to obtain an advantage in a civil matter if the criminal charges are related to the civil matter and the lawyer reasonably believes that the charges are well grounded in fact and warranted by law and, further provided, the lawyer's conduct does not constitute a crime under North Carolina law. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 363 (1992) and Rule 8.4(b).
Victim's civil claim for fraud against Client is related to the criminal charges against Client. If Attorney Z has a well-founded belief that both the civil claim and the criminal charges are warranted by the law and the facts, and Attorney Z has not attempted to exert or suggest improper influence over the criminal justice system, Attorney Z has not violated the Revised Rules of Professional Conduct by proposing that Victim will acquiesce to the plea agreement in exchange for a confession of judgment from Client. Moreover, it is not improper for Attorney Z to seek adequate security for Client's confession of judgment in the form of a promissory note from Client's spouse even though no civil or criminal claims are being made against Client's spouse.
Although the rule prohibiting threats of criminal prosecution to gain an advantage in a civil matter was omitted from the Revised Rules of Professional Conduct, a lawyer representing a client with a civil claim that also constitutes a crime should adhere to the following guidelines: (1) a threat to present criminal charges or the presentation of criminal charges may only be made if the lawyer reasonably believes that both the civil claim and the criminal charges are well-grounded in fact and warranted by law and the client's objective is not wrongful; (2) the proposed settlement of the civil claim may not exceed the amount to which the victim may be entitled under applicable law; (3) the lawyer may not imply an ability to influence the district attorney, the judge, or the criminal justice system improperly; and (4) the lawyer may not imply that the lawyer has the ability to interfere with the due administration of justice and the criminal proceedings or that the client will enter into any agreement to falsify evidence.