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When Does Counsel "Obtain An Improper Advantage In A Civil Matter"?Mindee J. Reuben

New Jersey Rule of Professional Conduct 3.4(g) provides that an attorney “shall not … present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” Doing so “is a form of intimidation and harassment that threatens the integrity of the civil process and is prejudicial to the administration of justice.” New Jersey Ethics Opinion 714 (Conditioning Entry of a Plea or Entry Into Pretrial Intervention on Defendant's Release From Civil Liability and Hold-Harmless Agreement), 194 N.J.L.J. 451 (Oct. 27, 2008). But what exactly constitutes obtaining an “improper advantage” under the New Jersey ethical rules?

There is no question that it is unethical for an attorney to threaten or present criminal charges to gain an advantage in civil litigation. See, e.g., In re Kasper-Ansermet, 132 F.R.D. 622 (D.N.J. 1990) (referencing Matter of Leo J. Barrett, 443 A.2d 678 (1982) (interpreting DR 7-105(a)); New Jersey Ethics Opinion 347, 99 N.J.L.J. 715 (1976) (Threatening Criminal Prosecution to Aid Civil Action); New Jersey Ethics Opinion 551, 115 N.J.L.J. 96 (1985) (Revelation of Possible Criminal Violations in a Civil Matter). What isn’t so clear, however, is whether an attorney violates RPC 3.4(g) if the attorney also has a legitimate basis for his or her actions. New Jersey has not addressed this issue.

Other jurisdictions provide some insight as to how New Jersey’s ethical rule might be interpreted. For example, the New York Ethics Board held in 2003 that if an attorney offered at least one explanation for the communication that was not related to obtaining an improper advantage, the attorney would not be in violation of the ethical rules. See, e.g., New York Ethics Opinion 772, at § I.B. (“As long as one purpose of the client in filing such a complaint with a Prosecutor is to have the Broker prosecuted, convicted, or punished, then such a complaint would not offend the letter or spirit of the [ethical rule]”).

The New York Opinion, however, is premised on a slightly—but significantly—different version of the ethical rule than has been adopted in New Jersey. The New York ethical rule provides that an attorney “shall not … present, participate in presenting, or threaten to present criminal charges solely to obtain an improper advantage in a civil matter” (emphasis added). Notably, New Jersey does not include the term “solely” in RPC 3.4(g), suggesting that even if the attorney has a legitimate explanation for the communication, the legitimate explanation may not be sufficient to avoid censure under RPC 3.4(g) in this jurisdiction.

Determining whether an attorney’s communications are intended to obtain an advantage in a civil matter is, quite obviously, subjective. As a result, at least one state ethics board (where the ethical rule tracks the same language as in New York) has cautioned against contacting prosecuting authorities while the civil case is pending if there is even a “possibility” that an advantage could result in the civil matter:

Although the committee believes that the determination of when criminal charges are presented or threatened solely to obtain an advantage in a civil matter requires a factual case-by-case determination, the committee is of the view that the true subjective motive may be very difficult to ascertain during the simultaneous pendency of the civil case. Therefore, the lawyer's assistance in threatening, presenting or prosecuting the criminal charges against the opposing party would be rendered suspect as long as there is a possibility that an advantage could result in the pending civil suit.

See Virginia Ethics Opinion 1388 at 2-3 (1/14/91) (Threatening Disciplinary /Criminal Charges) (emphasis added) (citing Texas Ethics Op. 453 (11/13/87).

Given both the absence of term “solely” in RPC 3.4(g), as well as the subjective nature of any inquiry into the purpose of an attorney’s communications, a careful attorney should think long and hard about whether to present criminal charges to prosecuting authorities if is a civil suit pending at the same time.