Summary: An attorney in Massachusetts is not required to report violations of the Code of Professional Responsibility to the Board of Bar Overseers in the absence of a request under Disciplinary Rule 1-103(B). Disciplinary proceedings before the Board of Bar Overseers are sufficiently similar to criminal proceedings that it could violate Disciplinary Rule 7-105(A) if an attorney reported violations of the Disciplinary Rules on the part of another attorney to the board. The attorney may report the "serious violations" referred to in this inquiry, however, so long as the attorney is not acting solely in order to gain an advantage in a civil matter.
Facts: A law firm represents an individual in a lawsuit in which he is being sued for legal fees by his former lawyer. The law firm has learned that the former lawyer committed various "serious violations" of the Code of Professional Responsibility in the course of the representation. The law firm inquires whether it is required by Disciplinary Rule 1-103 to report these violations to the Board of Bar Overseers, and whether it is permitted to do so by DR 7-105(A).
Discussion: The first part of the inquiry concerns Disciplinary Rule 1-103. The committee assumes that the inquiry does not relate to subpart (B) of that rule, requiring disclosure "upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges," since no such request is mentioned. Massachusetts has not adopted that portion of the American Bar Association's Code of Professional Responsibility Disciplinary Rule 1-103--subpart (A)--which would require the reporting of violations even when there had been no such request.
The second part of the inquiry is whether reporting the violations to the Board of Bar Overseers is permitted. Disciplinary Rule 7-105(A) provides that "[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." One question is therefore whether such a complaint to the Board of Bar Overseers, or the steps the board might take in response, fall within the term "criminal charges" in the rule.
Ethical Consideration 7-21 of the American Bar Association's Code of Professional Responsibility states:
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.
Attorney disciplinary proceedings have much in common with criminal prosecutions. They are primarily designed to protect and vindicate the public rather than to remedy a wrong against a private party. As the Supreme Court stated recently in Middlesex County Ethics Committee v. Garden State Bar Assoc., 50 U.S.L.W. 4712 (June 21, 1982), "[t]he ultimate objective of [state control over the professional conduct of attorneys] is 'the protection of the public, the purification of the bar and the prevention of a recurrence.'" The rules relating to the Board of Bar Overseers refer to violations as "misconduct" and to the penalties imposed as "discipline," implying that there is a retributive as well as a deterrent rationale for such proceedings. Rule 4:01(3) of the rules of the Supreme Judicial Court, 365 Mass. 696, 697 (1974). Conviction of an ethical violation may carry with it a strong element of public opprobrium as well as exposure to several penalties. All of these are elements typical of criminal proceedings. In In The Matter of Ruffalo, 390 U.S. 544, 551 (1968), the Supreme Court described disbarment proceedings as "of a quasi-criminal nature," and applied to them due process requirements of a sort applicable to criminal matters.
Those few professional ethics authorities that bear on the question support the view that Disciplinary Rule 7-105(A) should be interpreted to apply to disciplinary proceedings before the Board of Bar Overseers. In one recent advisory letter from Michigan, an attorney was advised that DR 7-105(A) might be violated by reporting another attorney's ethical misconduct. 3 ABA Nat'l Rep on Legal Ethics & Prof Resp 302 (1981). A classic text on professional responsibility states that "[a] lawyer may not threaten . . . disciplinary proceedings in order to effect a civil settlement." Drinker, Legal Ethics 153 (1953). In In re Sherin, 50 S.D. 428, 210 N.W. 507 (1926), it was held that threatening to institute disbarment proceedings before a court if a dispute over legal fees was not satisfactorily settled, violated statutory prohibitions of extortion and was therefore "unethical and unprofessional conduct."
In view of these authorities and considerations, it is the opinion of this committee that reporting another attorney's "serious violations" of the Disciplinary Rules to the Board of Bar Overseers, where a likely outcome would be the institution of disciplinary proceedings against the attorney, would constitute the presentation of criminal charges within the meaning of Disciplinary Rule 7-105(A).
DR 7-105(A), however, only prohibits presenting or threatening to present criminal charges where such action is taken "solely to obtain an advantage in a civil matter" (Emphasis added). Thus, the attorney's purpose in threatening or presenting charges is critical. Where criminal charges are pursued in furtherance of the public's interest in the enforcement of criminal law rather than to gain leverage in a private dispute, no ethical violation exists:
DR 7-105 does not prohibit representing a client who pursues against another party, both a civil remedy and a criminal complaint, so long as each is pursued for a proper purpose. The civil remedy must be pursued for its benefits to the plaintiff, and the criminal matter pursued to bring an offender to justice. The plaintiff-complainant can proceed as to both, even though bringing a criminal complaint increases the pressure on his opponent in the civil matter. However, DR 7-105 prohibits invoking the criminal matter solely to gain a civil advantage; the complainant-plaintiff cannot use the criminal proceeding solely as a negotiating point or "club" in the civil matter.
In the Matter of the Discipline of an Attorney, 1 Mass. Atty. Disc. R. 144, 150-51(1979); see also MBA Opinion No. 79-7; ABA Informal Opinion No. 1484 (1/1/81).
A violation of DR 7-105 exists where the lawyer's conduct amounts to a "misuse of the criminal process to coerce an adjustment of an essentially civil claim." ABA Informal Opinion No. 1484, supra. Where this element is missing, there is no ethical violation. Id. In most cases where a violation of DR 7-105(A) has been found, there has been an explicit threat or offer linking the criminal matter with the civil advantage sought. In the Matter of the Discipline of an Attorney, supra, discussing cases; see also, Matter of Barrett, 88 N.J. 450 (1982). Where an explicit threat is not involved, a finding of impermissible purpose has been based upon such facts as the absence of any reasonable basis to believe a crime was committed, Id. at 148, 150, or other circumstances warranting the conclusion that the attorney acted with an improper motive. See People ex rel Gallagher v. Hertz, 708 P.2d 335 (Colo. 1979) (attorney repeatedly pressured law enforcement officials to jail prospective defendants).
To summarize, an attorney in Massachusetts is not required to report another attorney's violations of the Code of Professional Responsibility. The attorney may report the "serious violations" referred to in this inquiry, however, so long as he or she is not acting solely in order to gain an advantage in a civil matter.
Permission to publish granted by the Board of Delegates on January 19, 1983. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.