ETHICS OPINION 347-1938

NUMBER 347 1938

Question. A security dealer converted to his own use securities bought from him by an attorney who owed a minor balance of the purchase price therefor.

The Attorney General investigated and sought a complaint against the dealer to be signed by the attorney upon which to base a prosecution for the felony. The attorney did not regard the facts as constituting a crime and was disinclined to sign such a complaint. He was approached by the security dealer and his attorneys to negotiate reimbursement to him for his money loss. He considered the settlement but refused to agree to allow his testimony in any subsequent criminal proceeding to be affected, and he remained free to testify or take any other action required of him as an attorney or citizen.

Is it improper professional conduct for an attorney to settle his own civil claim against another person while investigations involving the very transaction in question are pending, when it is understood between the parties that the moneys to be paid the attorney in settlement of his claim shall not be consideration for refusal by him to testify, or to testify falsely?

Answer. The Committee concurs in Opinion 441 of the Committee on Professional Ethics of The Association of the Bar of the City of New York, rendered on the same question simultaneously submitted to that Committee, as follows: “it is not professionally improper for an attorney to compromise his own civil claim where the obligor pays the attorney an acceptable amount without any understanding or commitment, direct or indirect, with respect to subsequent action or testimony in a criminal proceeding affecting the same civil claim.”