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May a lawyer who is retained in a civil matter write the adverse party that unless he redresses the injury he allegedly caused the lawyer’s client, the lawyer will call such party’s conduct to the attention of a governmental department that has power to invoke civil, but not criminal, sanctions, and will also forward the information to a business or professional association of which such adverse party is a member?
When alternative remedies to redress an injury are available to a client, i.e. both in a civil court or before an administrative agency, his lawyer may inform the adverse party where relief will be sought. Accordingly, if the governmental department is able to redress the injury substantially as a civil court could do, we see no objection to a letter stating that the matter will be presented to the department for that purpose, notwithstanding that disciplinary sanctions or other procedures may also be available to the department.
On the other hand, if the department is unable to grant such redress, it would be improper for the attorney to threaten to send the kind of a letter presented in the question, (DR 7-102(A)(1)), because then its only purpose would be to coerce the other party into complying with the client’s demands through fear either of such sanctions or of other administrative action which could be long drawn out and expensive.
It has always been considered to be a breach of professional conduct for a lawyer to threaten to present criminal charges solely to obtain an advantage in a civil matter, DR 7-105; EC 7-1 and EC 7-21; N,Y. City 299 (1934); Drinker, Legal Ethics (19 53) p. 153.
The basis for this rule is stated in EC 7-21 as follows
“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.”
Committees on professional ethics have also regarded other coercive action as going beyond the bounds of professional propriety. So the American Bar Association Committee on Professional Ethics, through informal opinions, has stated, in determing how far a lawyer may go in protecting his client’s interests under former Canon 15, that he may not write to a debtor that a judgment against him will injure his credit or reflect on his moral standing, ABA Inf. C 303, (See Drinker, supra, p. 299) and that he may not write a letter threatening to present a matter to a regulatory body which has no direct connection with an action to collect a debt, such as a board which licenses persons like the adverse party, where the only purpose appears to be to coerce and frighten the alleged debtor, and that he may not send copies of the letter to a Better Business Bureau or Chamber of Commerce which could have the effect of injuring the party’s credit or reputation. ABA Inf. 734 (1964).
Our own Committee has held, in N.Y. County 424 (1953), that a letter is objectionable if it can reasonably be interpreted to mean that if the debtor does not pay an account his recalcitrancy will be publicized and his credit permanently impaired, and, in NY. County 438 (1954), that a letter may not threaten dire consequences if it is ignored. The Committee on Professional Ethics of the Association of the Bar of the City of New York has held that it is unethical to injure a debtor in his relations with his employer as a means of collecting a claim, by a letter to the Board of Education, N.Y. City 531 (1940); by repeated letters to the Police Department, N.Y. City 511 (1939); by a letter to an employer where as yet the claim has not been reduced to judgment, N.Y, City 612 (1942). Such letters were believed to detract from the dignity and honor of the legal profession. N.Y. City 663 (1944).
The use of coercive tactics where the obvious intent is to achieve through harassment or fear a result which is available through the use of civil remedies is not only unworthy of a lawyer’s obligation to uphold the dignity and honor of the legal profession, but it impairs and corrupts the regulatory process in much the same way as the threat of criminal action is considered to subvert or impair the criminal process.
With regard to the threat to forward the information to a business or professional association of which the adverse party is a member, the adverse party might fear such a disclosure even more than the application of civil sanctions since it could damage his credit or reputation. Accordingly, such a threat is governed by the same considerations as are stated above with regard to the threat to call his conduct to the attention of a governmental agency, and so it may be done only if the association is able to grant remedial relief.
November 16, 1972.