97-2.

• Case Date: March 21, 1997
• Court: Alaska

Alaska Ethics Opinion 1997. 97-2. Ethics Opinion No. 97-2 Use of Threats of Criminal Prosecution in Connection with a Civil Matter.The Ethics Committee has been asked to review Ethics Opinion No. 77-3 in light of changes to Alaska Rules of Professional Conduct ("Ethical Rules") adopted in 1993 and American Bar Association Formal Opinion 92-363 relating to the Use of Threats of Prosecution in Connection with a Civil Matter. The Ethics Committee has determined that in light of the present ethical rules, Ethics Opinion No. 77-3 should be withdrawn. Under Alaska's Ethical Rules, it is ethical for a lawyer to use the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for a client, provided that the criminal matter is related to the client's civil claim, the lawyer has well-founded belief that both the civil claim and the criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process. Ethics Opinion No. 77-3 addressed the issue of whether an attorney or firm which represents a client in a civil case to collect debt may also initiate a criminal prosecution for violation of a statute which makes failure to pay a crime. The opinion holds that an abuse of the ethical rules occurs only where the motive for the prosecution is solely to obtain an advantage in the civil case. The opinion goes on to state that communications from the lawyer to the offender that the offender may avoid prosecution by paying are clearly prohibited by prior Disciplinary Rule 7-105 which stated "[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." In reviewing Ethical Opinion 77-3, it is important to first consider the purpose of prior DR 7-105 and the presence or absence of similar prohibitions in Alaska's Ethical Rules. The stated purpose for DR 7-105 was to prevent the oppressive use, and thereby the subversion, of the criminal justice system. This provision, however, was deliberately omitted in the Model Rules of Professional Conduct. The reasoning behind this omission rested on the drafters' position that "extortionate, fraudulent, or otherwise abusive threats were covered by other, more general prohibitions in...